Eight years later, little has been learnt from the Kriegler Commission

Soon after the 2007/8 post-election violence ended with the signing of the Kenya National Dialogue and Reconciliation agreement, the Coalition Government made up of PNU and ODM committed to undertake far-reaching and comprehensive electoral reforms to prevent another round of violence.

To do this, they needed to find out what had gone wrong with the electoral process and how it could be remedied. The Grand Coalition Government consequently set up the Independent Review Commission on the General Elections held in Kenya on 27 December 2007 (IREC), which was popularly known as the Kriegler Commission. Its job was to inquire into all aspects of the 2007 General Election.

After six months of investigation and spending Sh49.4 million, the commission recommended far-reaching changes around six main issues. They were: the constitutional and legal framework relating to elections; the structure and composition of the electoral commission; the electoral environment and the role of political parties, civil society, the media and observers; electoral preparations; vote counting, tallying and announcement of results and post-election procedures.

Specifically, the commission recommended the overhaul of the electoral management process and the electoral commission, then known as the Electoral Commission of Kenya and led by Mr Samuel Kivuitu. Mr Kriegler cited the commission’s lack of independence and capacity which resulted from its organisational structure and composition as well as its systems.

He called for the formation of a new electoral body which would initiate, popularise and sustain a national commitment to electoral integrity, including maintaining a valid voter register. He further highlighted the negative role played by political parties and the media and called for a change in Kenya’s political culture.

However, some of the issues that arose from the 2007 post-election violence seem not to have been fully resolved and the 2017 election has become a source of considerable concern for various reasons.

The current debate around the capability and impartiality of the Independent Electoral and Boundaries Commission (IEBC) to manage the 2017 elections sounds like a déjà vu. Then, as now, there was a sitting President seeking re-election; the Opposition was casting aspersions on the partiality of the election management body and political and ethnic mobilisation across the board was in high gear.

First, Kenyans are concerned about the capability and impartiality of the IEBC to carry out free and fair polls. Their concerns are brought about by its failure to conduct the 2013 elections in a manner that instilled confidence in the process.

INTERNAL EVALUATION

The commission even later admitted, after an internal evaluation, that it fell short of expectations and had not fully prepared for the elections. For example, the Sh8 billion biometric voter identification system — which was supposed to prevent people from voting more than once — failed and electoral clerks had to use the manual system. It later turned out that some of the BVR kits arrived as late as February 28 — three days to election day and the clerks were hardly trained to use them.

The use of the BVR was a direct recommendation of the Kriegler Commission, which noted that the 2007 polls were marred by the “incidence of abnormally and suspiciously high voter turnout figures reported from many constituencies in certain areas.”

The commission noted that “high turnout in polling stations in areas dominated by one party is extremely suspicious and in the eyes of IREC is in itself a clear indication of likely fraud, most probably conducted through ballot stuffing, utilising local knowledge of who on the poorly kept voter register is absent, deceased or for another reason unlikely to appear to vote.” Kriegler and team thus recommended use of a biometric voter identification to minimise chances of fraud. Resorting to manual identification, therefore, dented authenticity of the process in 2013.

A second concern revolves around the integrity of the voters register. During the 2013 election, the IEBC had two registers: one for persons whose biometric data was captured, and a second one — the Green Book — for persons registered manually. Ordinarily, only one register should be used. The integrity of the principal register of voters was one of the issues in the presidential poll petition by Cord candidate Raila Odinga at the Supreme Court.

He argued that the law does not allow the commission to have multiple registers. The IEBC needs to make it publicly clear the authenticity of the voters register. As Kriegler report noted, part of the problem in 2007 “was the indulgence granted by the ECK shortly before the elections for “black books” (in which the names of voters had been entered at the time of registration) to be used in certain circumstances and for double registrants to be allowed to vote, contrary to previous regulation).

A third issue of concern relates to the integrity of the IEBC commissioners. The process of acquiring the BVR kit and whole technological system of tallying was very badly-handled with procurement wars being reported throughout the process. In a petition to the Public Procurement Oversight Authority (PPOA) by one of the bidders, the oversight body concluded that the IEBC was in breach of procurement laws and had even failed to abide by the terms it had set.

More damaging, however, were allegations that IEBC Chairman Issack Hassan, former Chief executive James Oswago, former IIEC commissioner Ken Nyaundi and Kenneth Karani (senior procurement officer) might have been bribed by Smith and Ouzman Ltd in order for them to win contracts.

They have already denied taking any bribes but Smith and Ouzman Ltd directors Christopher Smith, and his son Nicholas Smith, have been jailed in the UK for bribing officials of the Interim Independent Electoral Commission (IIEC) and the Kenya National Examinations Council (Knec) with an estimated Sh50 million to get printing contracts.

These corruption allegations have dented the image of the Commission and is one of the points that CORD has raised questioning integrity of the IEBC.

Public support for the IEBC has also waned, an institution that few months before the 2013 elections, enjoyed 90 per cent confidence rating (South Consulting Survey, February 2013) on its capability of carrying out free and fair elections. Less than 50 per cent of Kenyans currently trust the IEBC to carry out free and fair elections as currently established.

Reconstituting the IEBC and restoring public confidence in the body is important and urgent. It is notable that IEBC has called for the due process to be followed and Hassan has refused to resign saying he has not being found guilty.

However, this self-defence by IEBC misses the point that fairness in the election management process is largely a matter of public perception that needs to be managed.

The fact that Smith and Ouzman Ltd Directors were jailed on account of bribing IEBC officials should have set the motion of trying the local suspects and this would have effectively protected the integrity of the IEBC as an institution. This has not happened and thus has continued to expose the electoral body to doubts on its capability of holding free and fair elections.

Patrick Mutahi is a policy analyst in Nairobi ([email protected])