A notable feature of the CoK2010 was the decision to dedicate an entire chapter to leadership and integrity, outlining the ethical standards required of those who seek public office, whether elective or appointive. By so doing, the constitution acknowledged and sought to cure in one ambitious swoop the seeds of maladministration, state-led corruption and diminished integrity in public service and public institutions since independence. It is against this backdrop that we must assess the extent to which the 2017 elections met or undermined key constitutional promises on ethical leadership, inclusion as well as the integrity of aspirants, institutions and processes.
The unprecedented decision by the Supreme Court of Kenya to declare Uhuru Kenyatta’s re-election and results of the 2017 presidential election ‘invalid, null and void’ presents the latest and perhaps the most significant watershed in Kenya’s democratic transformation to date. In a ruling that set a deserved precedent in Africa and the commonwealth and a surprise shock to the world, the apex court concluded that the Independent Electoral and Boundaries Commission (IEBC) ‘failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution.’ With two dissenting opinions, the six-judge bench also submitted that the IEBC ‘committed irregularities and illegalities in the transmission of results’ among other unspecified issues, all of which affected the integrity of the poll. In summary, the Supreme Court agreed with the petitioner that the electoral body intentionally breached electoral laws and committed significant electronic manipulation of results in favour of the incumbent president Uhuru Kenyatta.
The ruling and revelation of massive electoral fraud has buoyed many electoral losers especially gubernatorial and parliamentary candidates to move to court to challenge election outcomes. Notably, over 70 percent of the nearly 80 election petitions filed in various courts across the country were filed within the first two days after the Supreme Court ruling on the presidential election petition. The spectacle at the Supreme Court had laid bare the extent of fraud committed by IEBC electronic manipulation of the democratic will of the Kenyan people. It now remains to be seen what the supreme verdict will mean for those leaders Raila Odinga had referred to as ‘Vifaranga Vya Kompyuta’ i.e. computer-generated leaders who may have benefited from the alleged use of a mathematical algorithm to deliver a suspiciously high number of winners with the same percentage of the vote.
However, the Supreme Court ruling is significant beyond the fresh presidential elections. It has drawn a powerful line against historical manipulation of electoral outcomes by incumbents in Kenya and Africa while restoring the integrity and impartiality of a judiciary that has struggled with an image of partisanship and entrenched corruption for decades. Prior to the ruling, the petitioners had laid bare the contested credibility and integrity of IEBC as an institution and vindicated those voices that had always called for greater scrutiny of the institution. But least mentioned is the fact that the question of electoral integrity runs much deeper beyond the substance of the presidential election petition. The question of electoral integrity must encompass the entire process of election management including the vetting of aspirants and the role of key institutions like political parties and frontline institutions. In 2017, the IEBC stood in concert with ethically challenged aspirants, granting them opportunity to run for office despite their obvious failure to meet provisions of Chapter 6 and related laws. As the institution with the final word on who runs for public office, the IEBC missed many opportunities to breathe life into the spirit of Chapter 6 on leadership integrity, instead clearing even aspirants with the most egregious ethics violations including convicted criminals and aspirants charged with forgery, rape, murder and robbery with violence. To be fair, these failings are equally shared with political parties that reward unethical conduct with party tickets despite the clarity of Chapter 6 and enabling legislations on eligibility for public office.
Professional associations, faith communities, government agencies, civil society, private sector and many others all added their voice to the call for the election of leaders with integrity. The Attorney General established the multi-agency Chapter 6 Working Group that brought key frontline vetting institutions. The multi-agency group included the Ethics & Anti-Corruption Commission (EACC), Office of Registrar of Political Parties (ORPP), the Office of the Director of Public Prosecutions (ODPP), Higher Education Loans Board (HELB) and IEBC as the Secretariat. At the launch, the IEBC chairperson Wafula Chebukati announced that the the multi-agency’s mandate was simple: ‘... to enforce compliance with the leadership and integrity requirements by aspirants …’
In April 2017, civil society organizations under the auspices of the National Integrity Alliance (NIA) launched the #RedCardCampaign to raise integrity as a critical campaign issue. Ahead of party nominations, the NIA urged political parties, EACC and IEBC to ensure they only cleared clean candidates to run for election. In their view, unless aspirants were thoroughly vetted for integrity, the roots of corruption and ethics deficits planted in the last four years would grow into trunks of impunity. In May, NIA also submitted to, and demanded that the IEBC bars from running the #RedCard20, a diverse list of aspirants with major ethics violations. In the same month, the EACC vetted all aspirants forwarded by the political parties to the IEBC and submitted a list of 106 who, in its considered opinion, should not have been cleared to run. Save for one person, the IEBC ignored these recommendations and cleared more than 14,000 aspirants to run across the six electoral positions including those in the EACC’s list of ethically challenged individuals, including those previously declared unfit to hold public office by the courts. Once again, the apex vetting institution had unleashed upon the Kenyan electorate an uninspiring list of aspirants to compete for national leadership.
Gender question and the cost of not electing women
The 2017 elections showed that affirmative action can produce positive results for marginalised populations including women. Despite the persistence of a challenging environment for women’s political aspirations and participation especially within political parties, ever more women came out to stand for election at all levels save for the presidency. At 2,077, women aspirants constituted only fourteen percent of the 14,524 aspirants cleared by the IEBC to compete for the 1,882 elective positions. Of these, six women ran for Gubernatorial seats, 26 for Deputy Governors, 18 for the Senate, 120 women for the National Assembly and a whopping 1,933 women ran for the position of Member of County Assembly.
Despite continuing challenges, the 2017 elections registered overall progress in many fronts. While the Senate returned 31.3% female seats and the National Assembly 21.7%, collectively, elected women now constitute 23.3% of the 12th Parliament. However, only 96 women were elected as MCAs out of the 1,450 county assembly wards nationally. Despite ward representatives being the closest link with the people in Kenya’s new devolution dispensation, at least 10 counties made the unenviable list of shame for not electing a single woman as MCA. These include Embu, Garissa, Isiolo, Kajiado, Kirinyaga, Mandera, Narok, Samburu, Wajir and West Pokot who will have to nominate at least 10 women each. Subsequently, in order to comply with the gender rule and meet the legal threshold, Kenyans will have to nominate more than 600 women into the various county assemblies, translating into at least an additional KES. 1billion annually in basic salary alone.
These numbers are by all means indicative of progress. However, more still needs to be done to ensure that the discourse on equitable and inclusive representation begins from within the ranks of political parties. In fact, if political parties were truly committed to upholding the gender rule, it is unlikely that Kenya would have had the constitutional crisis on gender representation during the 11th Parliament. Beyond political parties, the violent nature of political campaigns continues to undermine effective free participation of women in politics, whether as aspirants, voters, supporters or campaign managers. While political violence and intimidation during campaigns affects all irrespective of gender age, the increased vulnerability of especially women is linked to weak financial positioning, limited capacity to absorb the psycho-social shocks, misogyny and sexism of the campaign trail. In April during the party primaries, Millie Odhiambo, a female MP had her house torched by arsonists but also had her bodyguard die after being run over by an opposition campaign vehicle. The socialization of ‘domestication’ also ensures that women can hardly campaign outside of safe spaces and safe hours of daylight, denying them access to spaces that may be deemed unsafe and male-dominated. Earlier in February, Eunice Wambui, an aspiring MP for Embakasi South was viciously attacked by yet to be identified men during a voter registration drive in low income area of Mukuru Kwa Reuben in Nairobi. It is imperative that the numerous legal frameworks and policies are translated into deterrent action to secure the right of all, including women and young people to participate freely and effectively in political processes.
Lessons and notables
The 2017 primaries saw the two major political formations experience serious, near vicious internal competition for party tickets ahead of the main elections, resulting in perhaps one of the most competitive primaries in Kenya’s nascent multi-party democracy. One regret is that the unexpectedly huge voter turnout across the country was not met by better organisation by political parties. Though violence was not as widespread, the shambolic primaries exposed the big task ahead in building political parties as accountable, well-governed and enduring institutions. Does the high mortality rate of political parties in Kenya make this task impossible? Can legislative control over registration of parties help reign in on this malaise? Political parties are an important part of democratic growth and their professionalization is critical in improving not just the quality of representation but that of Kenya’s democracy as well.
To secure the integrity of the election, Kenyans put their faith in technology and together with donors, invested more than 24 million dollars in the Kenya Integrated Electoral Management System (KIEMS), an electronic election management system designed to prevent ballot stuffing, data interference, illegal and/or dead voters among other prominent undemocratic practices that have marred previous elections. In the end, the investment in technology could not cure the ethics deficits inherent in the human agencies compromised institutions entrusted with the responsibility to secure the integrity of the election. It remains to be seen whether any of those involved in this attempted civilian coup will be successfully prosecuted to act as deterrence.
Ultimately, the presidential election petition and all preceding election-related suits in lower courts before the election were legitimate, lawful struggle between those who have mastered the art of subverting the will of the people through weakened institutions on one hand and those forces that wanted to secure the integrity of the elections as the last frontier in the struggle against entrenched electoral fraud manipulation and political disenfranchisement on the other hand. If nothing else, the supreme verdict vindicated the latter in an unlikely moment of institutional renewal.
 The Standard. More than 76 politicians file election petitions http://bit.ly/2wgaejU