Trading Peace for Justice in the Kenyan Election

Graph by Seema Shah

The Supreme Court of Kenya has a lot on its plate. Just one week after the declaration of Uhuru Kenyatta as president-elect, the court is preparing to read and rule on two cases, both of which challenge the integrity of the electoral process. It has 14 days to make its decision. 

The national narrative has changed dramatically over the past week. What started out as a collective sigh of relief over the absence of violence in the wake of election results has slowly turned into shock and anger as more and more evidence points to serious irregularities in virtually every step of the electoral process, from the procurement of biometric voter registration kits and ballot papers, through the compilation of the voter registry, and on to the vote-counting process and the reporting of results. These irregularities suggest either massive electoral fraud or gross incompetence. Certain patterns, especially in an analysis of the voter registry, suggest that it is more likely the former than the latter. Even as the international community was focusing at first on the possibility of violence, and then congratulating Kenya on its absence, this unfolding story of malfeasance was getting comparatively little attention — even though it was sometimes happening in plain sight. 

One of the most critical problem areas is the voter registry, arguably the bedrock of the entire election. To this day, it is unclear which register was actually used on election day. This may have something to do with the fact that there are no less than four different lists in circulation, based on four separate dates during the registration process. The number of voters in each list is different, and there is an especially alarming gap of 12,500 additional voters between the most recent version and the provisional list that was made after registration closed. Even more worrying is the geographical pattern of additions and subtractions, which show approximately 14,000 less voters in primary challenger Raila Odinga’s strongholds and about 68,000 more voters in Kenyatta’s core areas of support. Kenya’s national electoral commission, the Independent Electoral and Boundaries Commission (IEBC), issued a notice on February 18, 2013, stating that the Principle Register had been gazetted, but it has yet to be seen in the actual paper gazette. 

Then there is the biometric voter verification system that had been put in place to prevent tampering, such as ballot box stuffing. It malfunctioned in most polling stations. This failure, in combination with the mysterious plethora of voter registers, created huge problems on election day. The numbers of registered voters on constituency-level tallies sometimes differed from the numbers that were announced by the IEBC when they declared the presidential results — in some cases, by the thousands. The tally forms from around the country also revealed a variety of other problems. Arithmetic errors abound, such that the total number of votes recorded for each candidate are not mathematically correct. In some cases, the constituency-level forms leave out results from some of the area’s polling stations. In others there were even differences between the total number of votes printed in numerals and the total number of votes written out in words. Perhaps most worrying, however, is the fact that many of these problematic forms include the signature and stamp of an IEBC official. 

Earlier in the week, the Supreme Court ordered that the IEBC release all the original election results as recorded at the level of the polling station. Even a cursory glance reveals significant flaws. The total votes for presidential candidates announced by the IEBC are in some cases hundreds larger than what was recorded. In other cases, the number of registered voters in all of a constituency’s polling stations does not match the total number of registered voters on any of the four registers in circulation. 

At the end of the vote counting process at each polling station, IEBC officials were supposed to digitally transmit their results to the National Tallying Center in Nairobi through an allegedly secure mobile phone system designed specifically for this purpose. On Monday night, the system failed, allegedly because the server did not have enough space to accommodate the incoming results. This seems surprising, given that the IEBC was clearly aware that about 33,000 polling stations would be submitting their vote counts. It is even more surprising, however, when one considers that the polling stations were not submitting all of their results at the same time. On the contrary, only about 13,000 stations had transmitted results by the time of the crash. So why would a server specially designed to receive thousands of polling station results crash well before it could have been overloaded? 

When the IEBC subsequently announced that it was calling all its officers to Nairobi to manually report results, it became clear that the electronic system had been abandoned. In essence, then, there was no check on the manual results at all. This failure meant that there was no real way to ensure public trust in the system. 

Finally, it’s worth noting that a simple summation of the numbers being projected on televisions across the country showed serious discrepancies. The number of votes shown at various points during election night broadcasts cast did not equal the number of valid votes plus the number of rejected votes. At one point, the total number of rejected votes even decreased. Where did those rejected votes go? These problematic figures were picked up by many ordinary Kenyans, who noticed the gaps and have now started questioning them. 

Yes, Kenya has kept the peace — but what kind of peace is this? The extent to which the election truly reflects the popular will is undermined by each new irregularity that surfaces. How the court decides remains to be seen, but its ruling will surely determine Kenya’s future democratic trajectory. It will also define the nature of this post-election peace, which is currently merely the absence of violence. Real and lasting peace will come only when it is buttressed by justice.

Seema Shah is a political analyst based in Nairobi.