Jeffrey Smith and Arthur Gwagwa
The Kenyan Supreme Court’s ruling that nullified the results of August’s election was a watershed moment for the African continent. Kenya became the first African country to have its election results invalidated and a fresh election ordered by its highest court. Citing widespread “irregularities” in ballot counting, the unreliability of electronic voting machines and the absence of transparency at the Independent Electoral and Boundaries Commission, or IEBC, which oversaw the vote, the court declared that “[if] candidates do not respect the rule of law; if the average citizen, political parties and even candidates themselves do not perceive them as free and fair, elections can, and have led to instability.”
The technological challenges that seemingly doomed the election from the outset have been a subject of intense debate in recent weeks. But that debate has tended to ignore the lack of good governance and respect for democratic rights that prevail in Kenya—the larger context, in other words, that caused the election to fall well short of democratic standards in the first place. Understanding these issues and deriving the key lessons from Kenya’s latest democratic experiment are essential before the country’s election rerun, tentatively slated for October 26.
From a solely technological standpoint, it would appear that Kenyan officials either ignored correctable mistakes made in past elections, or were unconcerned with their consequences. To the government’s credit, and presumably in order to address past complications, a French-based company was contracted to verify and authenticate the voting process in August. However, the IEBC failed to follow simple instructions, prescribed by Kenyan law, to transparently transmit the election results from polling stations to the vote-tallying center. When the political opposition and civil society groups called the IEBC to account for the discrepancies, it outright refused to open itself up to scrutiny. According to the Supreme Court, the failure to ensure a verifiable transmission of results, and the refusal to be transparent about the process, “negated the will of Kenyan voters” and formed the crux of the court’s decision to annul the election.
This critical malfunction of the IEBC indicative of the larger democratic backsliding evident in Kenya over the past several years, which has infected domestic institutions from the executive on down. Local, regional and international civil society organizations, as well as Kenya’s political opposition, have all raised these same concerns with regularity since President Uhuru Kenyatta’s government took power in 2013.
As the Supreme Court noted, this deep-rooted sense of grievance and marginalization can ultimately lead to social instability. It already has in Kenya, both after August’s vote and, much more violently, after a contentious election nearly a decade ago. The conduct of the IEBC reflects of one of Africa’s biggest and most pressing challenges today: a lack of independent and accountable institutions.
This evident weakness now manifests itself in the technological sphere, which is particularly concerning given that a growing number of African countries, such as Zimbabwe, are now adopting biometric technologies that can lead to violations of basic privacy and electoral rights, further blurring the lines on what constitutes a truly free, fair and credible election.
When basic human rights violations take place alongside the use of supposedly sound and unbiased technology, they can lead poll observers, monitors and even seasoned election experts to draw false conclusions that serve to entrench undemocratic and illiberal practices. In Kenya, many have identified the problem as a lack of proper oversight of election technology. But the technology obscures the larger issue at hand. As both current and historical factors make clear, the situation in Kenya involves a government that is on an unequivocal path to erode the rule of law and the democratic tenets that underpin it.
President Kenyatta’s incendiary verbal attacks on the judiciary and a petition to oust the chief justice point to a problem far deeper than electronic voting machines. It is a lack of respect for the rule of law. This is not a recent phenomenon. Several observers have long warned against an “authoritarian contagion” in East Africa, with Kenya just the latest and most apparent example.
A look at Kenya’s recent past suggests its government’s concerted disregard for basic human rights. A failure to respect the rule of law in 2007 led many Kenyans to believe that that election was neither free nor fair, which stoked violent instability that resulted in over 1,200 deaths. Tens of thousands more Kenyans were displaced in the post-election violence and perhaps millions disenchanted with a warped sense of what “democracy” means for them. When a case in the International Criminal Court against Kenyan officials accused of orchestrating the violence collapsed amid political interference and the intimidation of witnesses, it demonstrated the Kenyan government’s pattern of sacrificing liberal ideals, such as respect for the rule of law, for sheer political survival. These instances, among many others, are why Freedom House cited Kenya as a key example of where democracy “broke down” between 2000 and 2015.
This more appropriate context exposes Kenya as one of the emerging illiberal powers that have sought to actively contest genuine democratic development in Africa. Kenyatta’s brazen assault on civil society, his seeming disregard for civil liberties and political rights, the continued verbal attacks on Supreme Court judges, a lack of cooperation with the ICC and the IEBC’s reluctance to subject itself to scrutiny all show a determination to draw new lines that lower democratic standards.
Despite some of the complexities of election technologies, this was not an overriding problem in Kenya. The technology employed in August, which combined software-independent systems based on paper ballots to protect and verify the audit trail, followed today’s best practices. To strengthen this system moving forward, and certainly before the next election later this month, donors and election monitors—if they are allowed back in the country—should seek to improve the oversight of the IEBC and to ensure that the commission and its staff independently discharges its constitutional mandate.
At a wider political level, the Kenyatta government must begin to show a genuine commitment to respect the rule of law, including the country’s judiciary, given its vital role as an effective and independent arbitrator. The continued lack of respect and downright disdain exhibited by the government poses significant threats to Kenya’s short- and long-term stability, as rightly noted by the country’s Supreme Court. Free and fair elections are a cornerstone for sustainable development. That credible elections are increasingly in short supply is a symptom of larger and more negative political headwinds, and it starts at the top with those in power.
Kenyans both expect and deserve better from their democracy—and from their current elected leaders. The United States and European Union would be well served to use their diplomatic clout and collective leverage, from now until October 26 and beyond, to remind those same leaders of Kenya’s indispensable, if flawed, role as a leading commercial, economic and political linchpin on the continent. A truly free and fair election in Kenya would help democracy’s prospects in the region writ large. But the opposite holds true if another election is perceived as compromised or even stolen by those who are meant to serve Kenyans’ best interests.
Arthur Gwagwa is a Senior Research Fellow on the Sub Saharan-Africa Cyber Regionalism and Elections project, funded by the Open Technology Fund.