President has failed to show leadership on poll matters

The late Christopher Hitchens, author of The Missionary Position: Mother Teresa in Theory and Practice, quotes Benjamin Disraeli sarcastically remarking that “you can tell a weak government by its eagerness to resort to strong measures.”

If so, President Uhuru Kenyatta’s government is frail in the extreme given his now clear, strong-arm measures: clobbering his opponents; intimidating foreigners; outspending his competitors and dishonouring all the bipartisan deals that his team agreed with the Opposition in August this year. Political rallies and protests are being disrupted more regularly than they have been since 1997.

Political rhetoric — on both sides — has become abusive and bellicose. The Independent Electoral and Boundaries Commission has slow-punctured the recently agreed reforms: observing none of the guarantees enacted and sullenly grumbling that the electronic voting commitments are unworkable.

It is obvious — as I suspected from the beginning — that the government accepted the Windsor negotiations to remove electoral reforms from the streets into the boardroom. The outlook for 2017 is alarming: a corrupt and desperate government now confronts a frustrated and despondent Opposition in a cold but dangerously heating up war of mutual resentment. Barring a Damascene conversion by Uhuru Kenyatta and Raila Odinga, Kenya is headed into its most violent election yet. We need not go that way.

First, the President must stop acting as if he is afraid of an honest election. He needs a legitimate election more desperately than the Opposition. Should he win, his authority in the post-2017 period will depend on whether his opponents believe he has won fairly.

So far, he has placed every obstacle on the road to an honest election. Jubilee is resisting the seamless integrated electronic voting system mutually agreed with the Opposition. But that begins to look like fear of the enhanced transparency that the technology could bring to elections rather than a genuine concern that the technology could fail.

He has threatened to withdraw from the ICC. But that seems more a stratagem to avoid potential liability if violence breaks out in 2017 than a vengeful gripe for his post 2008 ICC tribulations.

The government has purchased high-end crowd control equipment under cover of anti-terrorism re-armament. But given how often that equipment is now “outed” to quell protests, it is obvious that the machines were bought to suppress election-related protests not to interdict terror. The President is beginning to sound strident against foreign interference. But these warnings sound like a re-run of his 2013 election strategy in which he cleverly bullied Kenya’s partners into silence and won power by mobilising anti-imperialist rhetoric.

These moves are fraught with danger: by blocking the only legal route through which the Opposition believes it can win an election, the President has fostered a mindset that power cannot peacefully change hands in Kenya.

It is easy, as the President has done, to demoralise one’s opponents by being unreasonable. Unfortunately, hostility cedes the moral high ground, surrenders the justice of one’s cause and, eventually, breeds violent resistance.

Second, much has been made of the President’s infirm war on corruption. Yet the underlying problem is the fact that long before corruption beat the President back into helplessness, he had long lost the war for civil liberties.

No country has ever won the war on corruption where citizens are afraid to speak; the public cannot protest safely; the press is threatened for investigating the misdeeds of the powerful; public information about government decisions is concealed; space for civil society is restricted; government contracting is secretive; court orders are routinely disobeyed and legislators are just a mafia of extortionists.

Two examples will suffice. One, on Jamhuri day, the police tear-gassed protesters rallying against corruption, a rather unusual reaction if you recall that Transparency International, the anti-graft NGO, ranked Kenya 139 out of the 168 countries it surveyed for its Corruption Perceptions Index in 2015.

Two, on December 19, the executive director of the NGO Co-ordination Board, Fazul Mohammed, terminated the 20 million dollar Kenya Electoral Assistance Programme of the International Federation for Electoral Systems, IFES, on the silly and illegal argument that IFES is not registered as an NGO in Kenya. His letter ordered IFES to cease operations immediately; warned all its foreign employees about working in the country illegally and instructed the Central Bank of Kenya to “preserve all bank accounts until ‘further communication’ from the board.” This came barely a week after President Uhuru had warned foreigners not to interfere in the 2017 elections.

Such official disdain for basic liberties and legal commitments underlines why the public does not heed president Uhuru’s exhortations to support his war on corruption. On Jamhuri Day Kenya remembers its liberation from 70 years of the colonial lash. It is not a day to mimic the colonial government. It is certainly not a day for the police of a free Kenya to whip citizens who enjoy the expansive liberties protected by one of the most comprehensive bill of rights in Africa.

As for IFES, the actions of the NGO’s Co-ordination Board are unfathomable: IFES’s work in Kenya goes back 20 years and more. The current programme is based on a bilateral agreement between the Kenya and the USA.

Under this agreement, IFES is the implementing contractor for the elections grant. Given its work in 21 countries in Sub-Saharan Africa — and a total of 145 countries worldwide —the Uhuru government should not act as if IFES is a Criminally Organised NGO that the US government has sneaked in to steal the 2017 elections for the opposition.

The irony is that IFES is not always a favourite of local NGOs: some feel that it is too close to IEBC for comfort, as in 2013, for instance. The truth, though, is that unlike local NGOs, the government and opposition are better off with international agencies like IFES assisting in the elections, not primarily because of the US$20 million they are investing, though that is not to be sniffed at.

But because agencies like IFES come with crucial assets: comparative knowledge; capacity to mobilise expertise quickly and, at times, an ability to see and point out problems that outsiders won’t know of until long after the fact.

In 2013, for example, the IFES ICT expert, Ronan McDermott, advised IEBC chair Issack Hassan to cancel the procurement for the Electronic Voter Identification Devices, EVIDs, because the kits on order did not comply with the Commission’s own specifications. That Hassan and the Commission ignored that advice speaks not about IFES but about venality and duplicity of IEBC.

The point, though, is that even in this iron-fisted measure, the government shows the same contempt for general law as it does for civil liberties. IFES is a company incorporated in the United States, where Kenya-style NGOs are unknown. Under the law foreign companies that operate in Kenya require only a certificate of compliance from the registrar of companies. According to records at the Companies Registry, IFES got its certificate of compliance on of July 25, 2011, a fact one would think Mr Fazul knows. If he does then this is just a case of impunity or, if you like, mtado?

Thirdly, by changing unilaterally reforms that were agreed bilaterally, the government has irreparably poisoned the political environment and sharply escalated the conflicts with the Opposition. The argument Jubilee makes for these changes is that the technology required cannot be procured in the time available and that the technology if deployed might fail. This is not convincing.

One,Jubilee might show good faith by demonstrating that in fact those requirements are insuperable. Right now, the only people saying that obligations are impossible to fulfill is the IEBC and Jubilee, a fact that tars the commission with the same brush with Jubilee and further erodes IEBC’s already ruinously low credibility.

Second, the IEBC and government have framed the issue in a way that it cannot be resolved. The issue for decision is whether IEBC should be allowed to use a manual system if technology fails. That, though, is the wrong question. Electoral technology should be designed to fail-safe, which means that failure should be built into the technology itself. There are four different technologies involved: the Biometric Voter Registration (which registers voters); the Electronic Voter Identification Device, EVID, (which allows voters into the polling station and identifies them before they vote); the Results Transmission System, and the electronic connection (between the EVID and the Electronic Voters’ Register).

Consider then what happens if one or all of these technologies fail. Barring a national catastrophe, technology could only fail in a localised way, it is not conceivable that all four technologies could fail all over the country.

In practice, this means that if the BVR fails, some places will have manual registers, not electronic voter registers. But given that voter registration takes place over a long period well before the elections, this should never happen. If the EVID fails, it means that the presiding officer in a particular polling area cannot electronically verify the voters’ particulars.

However, as in the past, the officer will always have a physical printout of the Electronic Register at polling station. If Votes Transmission System fails, then the EVID kit should be programmed to print out a Voter-Verified Paper Audit Trail to act as a fail-safe mechanism that allows a voter to confirm that their vote was cast correctly, to detect fraud and help audit the results. What do we need a manual alternative for?

In short, we can still have an honest election. And we can save Kenya from the chaos to come. But we need the President to lead, not to egg on the sycophants in his party.

The writer is a constitutional lawyer, [email protected]