Over the last few weeks, the country has been embroiled in an acrimonious and largely inane debate on changes to the country’s elections laws. The controversial revisions to the Elections Act seek to introduce a “complementary mechanism” to the integrated electronic electoral system for identifying voters and transferring results from polling stations to tallying centres.
Yet no one knows what this proposed “complementary mechanism” is. It not defined in the law but has been widely interpreted to refer some sort of manual backup to be employed in case the biometric and electronic devices fail as they did in 2013. That would allow voters to be checked off a physical register, basically a printout of the electronic one, and for forms containing results to be physically transported from polling stations where all the voting and counting happens, to the tallying centres where results are ultimately announced.
If such a manual system is what is contemplated, it is not clear whether it would be different from the system that was in place prior to 2013. In essence then, the law would not be proposing a backup but taking the country back to an era where elections were routinely stolen. In his presentation to the Senate, Royal Media Services proprietor, SK Macharia, noted that of the five general elections held in the multiparty era, in only one had the candidate for President receiving the most votes been declared the winner.
In fact the move to an electronic system was in response to these repeated failures, which were the trigger for the 2007/8 post-election violence. In a 2010 paper, the immediate former chair of the Independent Elections and Boundaries Commission, Ahmed Isaack Hassan, declared that “based on the recommendations of the [2008 Kriegler Report], the Commission was determined to have a fully automated electoral process, from e-registration, e-voting and finally e-transmission of results.“ While the system the IEBC eventually settled on had both manual and electronic components, it is nonetheless clear that the latter was introduced as a cure to the former. The amendments seek to reverse this and now present the discredited manual system as the cure.
And remembering that the electronic system was meant to deal with specific problems in the manual system, it is notable that there has been little articulation by the amendment’s proponents of what has been done to fix those. That the experience of the 2013 elections where the IEBC was forced to revert to a completely manual system has not featured prominently in the debate is also telling.
But what is most galling is the fact that the entire debate is conducted without benefit of an understanding of how the electoral system as a whole is meant to function and where gaps and opportunities for mischief exist. There is also much conflation of issues which leads to confusion. For example, the case for a “complementary mechanism”, not as a backup, but as a check on abuse of the electronic system is much stronger when dealing with transmission of results than with voter identification.
In transmission, the two systems could function together simultaneously, each as a check on the other, as the IEBC had apparently intended in the 2013 election, with the instantaneous results transmitted via the electronic system being provisional until verified via the physical delivery of the form. The idea was to discourage the practice of election officials disappearing en route to transmission centres and eventually turning up with doctored forms. With the information having been already sent ahead via the electronic system, any discrepancy would immediately raise a red flag and the ultimate back up would be the ballot boxes and the ballots contained therein.
Since there is no dispute about biometric voter registration, the identification of voters via a physical printout of part the information contained in the electronic register has much less appeal. The requirement for the biometric registration was designed to solve the perennial problem of ghost or dead voters, first by ensuring the register is populated with details of real, living voters and secondly to ascertain that the person who turns up to cast a ballot is the actual registered person. It also eliminated opportunities for mischievous electoral officials to “vote” on behalf of registered voters who didn’t show up.
If the electronic voter identification system was to break down entirely, as it apparently did in 2013, any credible “complementary mechanism” would have to be robust enough to handle these challenges. A physical printout simply does not cut it.
Further, the lack of an audit has meant that we are reduced to putting out sporadic fires instead of addressing the system as a whole and dealing with root causes. We fail to see the wood for trees. Yesterday we were fighting over IEBC commissioners. Today it is voter identification and results transmission. All are important to fix but are only a small part of our dysfunctional electoral system which requires a complete overhaul. Everything from ID issuance to security to disposal of petitions needs to be looked into.
For example, there is little discussion about the weaknesses shown up by Raila Odinga's 2013 petition against the election of President Uhuru Kenyatta. The Supreme Court had only 14 days to deal with it. The IEBC essentially ran down the clock by refusing to provide him the documents he needed to make his case until compelled to by the courts. As a result, was not heard on its full merits. In fact, as reported by George Kegoro, one Supreme Court Justice openly admitted that he might have ruled differently if he had had more time. Yet we still have no law compelling the IEBC to hand over documents to petitioners nor are we contemplating changing the constitution to give the Supreme Court more time as recommended by former Chief Justice, Dr Willy Mutunga.
Clearly, the current debate has been held hostage to the narrow interests of politicians as opposed to those of Kenyans in general. The manner in which the Jubilee coalition has bulldozed the amendments through Parliament, despite its own Senators acknowledging that the Bill contains unconstitutional provisions, amply demonstrates this. In fact, the entire discourse on electoral reform has been polarized by politicians seeking advantage rather than attempting to reason out and fix the problems with the system. What they want is to win. Whether that win is secured in a fair and open manner is of secondary importance to them.
Yet it is a matter of life and death for the rest of Kenya. Thus the passage of the amendments and their imminent signing into law by President Uhuru Kenyatta should not be the end of the matter. We still can and must free ourselves from the tyranny of numbskulls and insist that needed reforms are not left to the whims of politicians but are discussed and agreed in for a that include a much wider array of stakeholders and interest groups including but not limited to academics, professional associations, media, civil society and religious leaders. The reforms must also be about resolving the historical problems that have plagued our elections and ensuring a transparent, free, fair and credible vote, rather than a win for particular candidates.