It’s difficult to say what electoral reforms to do

What international observers had hailed as free and fair elections broke down into a familiar disagreement, after the opposition rejected the results of the 2017 presidential election. 

While the polling day activities went on smoothly, polling has never been the problem in all previous elections, whose problems began with the counting, tallying and transmission of the results.

Like all previous elections, the disagreements in the 2017 election relate to what has happened during this stage of the process.

As required by the law, results were meant to be sent from the 40,883 polling stations around the country, on a prescribed format called Form 34A,  to the 290 constituency tallying centres and, simultaneously, to the National Tallying Centre. Also, a copy of the results was meant to be made available on the IEBC portal which would be accessible to the public.

FORM 34A

Form 34A, the primary document evidencing the results of each polling station, was to be signed by the presiding officer and all party agents at the polling station.

The IEBC had represented that no results would be announced if they were not supported by this form.

However, this did not happen.

Instead, the IEBC embarked on streaming supposed results that were not backed by any evidence — the relevant Forms 34A.

Also, there is abundant evidence that, in relation to several polling stations, the streaming of results began well before the counting of the votes had been completed, raising questions as to the source of those results.

IEBC PRODUCES FORMS

In response to complaints by the opposition, NASA, about the lack of access to Forms 34A, the IEBC eventually furnished them with these forms, which was supposed to facilitate an independent scrutiny of the basis on which the IEBC generated its results.

However, several issues remained unresolved even at that stage. First, up to the point of announcing the presidential results, the opposition maintained that not all the Forms 34A had been made available and that even the IEBC did not have all these forms in its possession.

Second, the opposition complained about the insufficiency of the time that the IEBC was prepared to allow for a scrutiny of the results.

Thirdly, because the forms were being made available so late after the event, questions had now arisen as to their authenticity.    

This election has faced the same challenges as those seen in the previous two.

In 2007, the primary results document was referred to as Form 16A, now renamed Form 34A.

FERRIED PHYSICALLY

At the time, this form was to be physically ferried into a national tallying centre in Nairobi, where it was to be the evidence of the results to be announced. In that election, the drama during the processing of the results revolved around the disappearance of some returning officers from the government strongholds, leading to delays in processing the results from those areas.

When, eventually, they turned up, the complaint was that the forms in their custody had been altered to inflate the figures to achieve a target that allowed the incumbent, Mwai Kibaki, to overhaul the challenger, Raila Odinga, now leading by a wide margin.  

Reforms during the next election in 2013 centred on the transmission of results and, for the first time, technologies were to be employed to minimise human mischief.

TECHNOLOGY

However, the technologies failed and were part of the general failures experienced during that election.

Preparations for the 2017 elections took into account the failures in the previous two elections.

Based on accumulated wisdom, the IEBC was to scan and send copies of the results forms from the polling stations, simultaneously with extracts of those results.

However, scanners that the IEBC purchased, and which were to be used for this purpose, were not used during the election. In an echo of what happened in 2013, when the IEBC resorted to a manual verification of the results, the IEBC was forced to invite the parties to Bomas of Kenya for a verification of the forms providing the basis for this year’s results.

GREATER PATIENCE

Still well within the seven days allowed for the processing of results, the IEBC could have shown greater patience by allowing parties more time to verify the results.

This might have eliminated the grievance by the opposition that it had not been given sufficient time to go through the results, some of which were not even available.

The weak control that the IEBC has had in this election has been demonstrated by its inability to speak about unfair tactics against the opposition, leave alone reining it in.

A unique factor in this election has been the role of the government in disrupting the opposition’s ability to participate in the elections.

POLICE RAID

This began before poling day, when police raided a tallying centre belonging to the opposition and also expelled foreign nationals supporting their campaign.

On polling day, field monitors reported many acts of official hostility towards the opposition and its agents.

Not surprisingly, the ability of the opposition to scrutinise the forms released by the IEBC has also been affected by fears of repeat raids on their tallying centre, where a confrontation with uninvited police officers was witnessed.

This election has failed in exactly the same way as the previous two.

PROBLEMS

A change of electoral personnel and another massive public expenditure in technologies has not prevented the occurrence of problems with which the country is now familiar.

There should now be doubts as to whether the country can ever get it right and it is difficult to say what should now follow in terms of electoral reforms. 

Like in 2013, and amid rising political tensions in the country, calls for peace have already been made and the international community is leading in this effort.

Although the country obviously needs peace, the repeat electoral failures, over which the government benefits, has left the opposition feeling that nobody understands or is prepared to take its electoral grievances seriously.

The immediate future is uncertain and will largely depend on the ability of the government, and its foreign backers, to demonstrate that they understand and are willing to address the grievances that the opposition has gathered from this election.

So far, there is no evidence that either of them understands.

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