New election law must not justify electoral cheating

It was a pleasant, hot January afternoon. I was running with a friend in Karura Forest, the joy and legacy of Wangari Maathai, who was a rare type of fighter in Kenya.

Maathai was a woman who looked down on power, wealth and display. Her eyes were set on higher and more rewarding goals: human lives, the environment, natural beauty and respect for the rule of law.

She was too good for her Tetu people. The land that gave birth to her rejected her for a plate of lentils, for a candidate who promised nothing too noble or high.

Just the type of politicians who appear in bars disbursing our tax money a week before the election, whom we call generous, “our men”. 

Tetu’s shame became global as the land that rejected the first African woman and environmentalist to win a Nobel Peace Prize.

As I jogged through the beautiful forest, I came across two runners, each with a little puppy. For some reason that I will not explain here, while people from the West seem to prefer dogs, in Africa we prefer children.

As soon as the puppies met, they started barking at each other in a furious, somewhat visceral manner. As I ran by, I said to their owners, “No need to worry, it's just an election year.”

The puppies had been barking at each other just like our politicians, who have been insulting and inciting each other in preparation for the August election D-day. 

Election years are the worst nightmares in Africa, full of strange uncertainties. We all seem to know who will win, but we do not know how.

The results may be certain, but the mode and methods of winning are not. The cheaters of today are the heroes of tomorrow.

It all has to do with lost trust, and nobody seems really interested in recovering it. Trust will never be recovered with laws, money, or technology, but is the subjective perception of an objective reality; trust is transparency, honesty and sincerity.

It places the common good above personal gain and lust for power.

CAMPAIGN FINANCING

The 2016 Electoral Laws (Amendment) Act was passed by the National Assembly via a special sitting on December 22, 2016, and on January 5, 2017, the Senate passed it. The President assented to it a few days ago.

The Act brings about 41 changes to election laws, most of which have been predominantly uncontroversial and perhaps necessary, if not progressive.

They include provisions directing the Commission to put in place special booths for disabled voters on polling day; some that raise the number of registered voters who may vote in a polling station; and others that instruct the Commission to engage a "reputable firm" to conduct an audit of the voter’s register.

The provisions that have raised dust are those that deal with the use of technology in voter registration and identification and transmission of results.

These provisions permit the IEBC to deploy "…a complementary mechanism for identification and transmission of results that is simple, accurate, verifiable, secure, accountable and transparent" in the event that electronic systems fail.

However, we have ignored more important changes, for example those relating to campaign financing and prosecution of election offences.

I put together two young lawyers and three outstanding law students — Allan Mukuki, Edward Paranta, Imani Jaoko, Cecil Abungu and Grace Diida — and questioned them about the new election laws. Their impressions were eye-opening, engaging, incisive and accurate.

According to Cecil, Section 44 on results transmission may have become such a sticking point due to a largely held belief that the manual system has long been manipulated to allow electoral fraud, with regular reports of names missing from the register and results being doctored.

WINNER WAS DEAD

Long before 2013, the Kriegler Commission had urged the establishment of a secure electronic system to guarantee integrity in registering voters and transmitting results.

Manual cheating is not new. Njenga Karume's book Beyond Expectations has a fascinating passage worth noting. There was massive rigging in the 1988 Kanu mlolongo elections. Kibaki was vying in Othaya, and he had the longest queues.

When the district commissioner (DC) announced the results, people were shocked. The DC had pronounced a dead teacher as the winner in one of the sub-branches.

Kibaki told the DC the winner was dead. He then requested, cheekily, that he name a chairman who was alive, for it would make Kanu’s workings so much easier.

It was all right for the dead to vote, but winning elections was a different issue. Cheating had gone too far.

Any normal election in Kenya has three stages: voter registration, voting, and the tallying and transmission of votes.

All these processes, as rightfully put by Prof Githu Muigai, are manual processes coupled with a tinge of an electronic process when it comes to the capturing of the biometrics at the registration stage as well as at the voter identification stage on voting day.

According to Allan, the key question then becomes, what if the electronic system fails? Does it mean that returning officers should close down polling stations there and then because systems are not working?

This is the quagmire the amendment seeks to address, and hence the complimentary provision between the electronic and manual systems. On the other hand, the opposition argues that this is a ploy to bring back "dead voters" into the election fold.

AURA OF LEGITIMACY

This manual-versus-electronic system is a "double-edged" sword. We need political consensus and to stop barking at each other. Otherwise we are nurturing another disputed election, with foreseeable violence. The country is bigger than anybody’s ego.

Cecil and Edward clarify that the Constitution does not call for any specific system to be used in elections. Even then, its spirit is one that requires constant consultation and participation in seeking consensus, and this may be the point on which this amendment most falls short. It nevertheless remains, if viewed in a legalistic sense, acceptable.

The great law professor Okoth Ogendo always said that the best of systems or laws are no guarantee that we will have a free and fair election if the persons entrusted with overseeing the electoral process lack the requisite values, principles, legitimacy and character needed to run such a process.   

As Edward puts it, if we are planning to ignore or corrupt the voice of the electorate, it is of no use that a citizenry take part in a façade in the name of an election and spend billions of taxpayers’ money just to give an aura of legitimacy to a "dictatorship" camouflaged as a democracy.

Imani also sees reality through holistic lenses. She is deeply concerned by the fact that the Council of Governors, the Media Owners Association, the Law Society of Kenya, the Kenya National Commission on Human Rights, religious leaders and the Kenya National Chamber of Commerce and Industry have also spoken against the manual backup system.

BURDEN ON SUPREME COURT

They argue that instead, Kenya should put in place an electronic backup system if technology fails.

The biggest threat to the two systems is the possible disparity between them. What will happen if there is discordance between the electronic and manual results?

Will we put the huge burden and subsequent blame on Chief Justice David Maraga and the Supreme Court? Are we creating laws to justify cheating and blame-shifting?

All these key questions will need honest answers from both sides of the political divide. It may be idealistic to expect some sort of honest dialogue, but rebuilding a country shattered by senseless political violence will be realistic if not.

Wachira Maina explained: “Electoral violence is common in those countries that regularly hold elections that the opposition cannot possibly win.” Are we setting ourselves up for violence? How honest is our approach to election laws?

These are all questions both sides of the divide should ask themselves. The country is in their hands and the puppies are barking at each other furiously.

If we let them grow, they will bite and then we will ask why, with naive astonishment.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi