The Electoral Vision of the Constitution
In their submissions to the CKRC, Kenyans expressed concern about elites’ ability to use elective office for personal enrichment, the lack of representation for certain segments of the population, outdated electoral systems, the problems associated with linking residence and voting rights, and the need for a more vigilant electorate.
In response to such concerns, Chapter Seven of the Constitution – which is dedicated to elections -- is based on five key principles: participation, inclusion, accountability, independence and integrity.
Participation and democracy are fundamental values of the Constitution (Art. 10(2)(a) and Art. 38). Citizens are empowered by basic rights that promote and encourage their active participation, including the right to join political parties, to lobby parliament, and to vote in and contest elections. The right to vote is bolstered by the lack of residency requirements for registration and by the requirement that voting be simple and transparent (Art. 82(2)). Restrictions to participation as a candidate are, in some cases, limited to certain educational and ethical requirements (See Chapter Six; Art. 99(1)(b) and 193(1)(b)).
The Constitution ensures broad based inclusion, with a special emphasis on certain historically marginalized groups, women, and the disabled. A critical aspect of the Constitution’s vision of inclusion is to be seen in political parties, which must have a ‘national character’. Parties must promote national unity, respect the rights of everyone to participate, including minorities and marginalized groups, and respect and promote human rights. They are explicitly forbidden from being founded along sectarian lines of any kind (Art. 91(2)(a)).
Notably, however, the principle of inclusion is limited by the use of first-past-the-post for presidential elections. The Constitution’s reliance on this majoritarian, winner-take-all system promotes divisive politics, creating no incentive for candidates to seek support outside of their core support bases. It is also disappointing that the acts of observing and/or monitoring an election are not explicit rights.
The Constitution, by mandating that voting be verifiable, tries to ensure that the processes through which leaders are elected are open and publicly accessible. Indeed, the IEBC is required to openly and accurately collate results and promptly announce them at the polling station level (Art. 86(a), (b) and (c)), ensuring a way for the IEBC and the public to cross-check results.
Accountability is also required within political parties, which – with the assistance and oversight of the IEBC - must hold democratic, free and fair internal elections and to have a democratically elected governing body accountable to party members.
The Constitution falls short, however, with regard to the IEBC’s accountability. Although Article 254 requires the IEBC to submit a report to the president and parliament at the end of each financial year, the Constitution does not specify in any detail what is to be included in such reports.
Independence is a crucial part of the Constitution’s vision for representation. Indeed, the Constitution’s definition of a free and fair election rests partly on the requirement for an independent administration body, one that is not subject to the direction or control of any authority and whose members cannot be removed other than for reasons of incompetence, bankruptcy, gross misconduct, serious violation of the Constitution, or incapacity to perform the functions of office (Art. 251(1)).
Overall, the Kenyan constitution’s vision of electoral integrity is centred on an easy to use and inclusive, publicly verifiable system (Article 81(e)). It strives to ensure that all citizens are empowered to demand voter-centred elections and to hold those who have power over electoral processes accountable for their decisions and actions.
The practice of elections does not seem to meet the high constitutional standards of democracy and integrity. In fact, all three of the most recent Kenyan national elections have failed in this regard. Either constitutional standards fail in practice or electoral actors violate the Constitution. To this issue we now turn.
Implementation of provisions on elections
Voter Registration, Voter Identification & Voting
Despite constitutional provisions requiring the government to facilitate simple voter registration; onerous registration processes and a Register of Voters marked by a multitude of errors and omissions have marred the credibility of elections. Evidence shows discriminatory (non-) issuance of national identity cards (required to register), ever-fluctuating registration figures, the lingering presence of over one million dead voters’ records in the Register, the continued use of ‘green books’ in spite of expensive digital systems, and hundreds of thousands of erroneous entries in the final Register.
Voter identification processes, which inexplicably depend on digital and manually created lists of registered voters, are unreliable and unverifiable. In spite of laws requiring simple and efficient identification, voters stand in abhorrently long lines only to face malfunctioning identification kits and/or inaccurate voter lists. Additionally, disabled voters, recognized by the law as requiring special attention at the polling station, continue to struggle to reach polling stations and to vote comfortably.
The complexity of these processes and the burdens they place on voters are in clear violation of Article 86(a) of the Constitution. Their longstanding nature highlights the dearth of political will for reform. Some legal amendments – including the expansion of acceptable forms of identification – would help, but enforcement of the current law would address the majority of the above issues.
Counting and Recording Results
The Constitution and electoral laws oblige the IEBC to promptly count, announce and publish hard copy and online results from polling station and constituency levels. In addition to forms characterized by a multiplicity of errors, alterations and missing forms, the 2017 cycle included the use of non-standard forms and ‘official’ results that differed from what had been shown to the public. Electronic results transmission systems, tainted by corrupt procurement processes, have also proven unreliable and publicly unverifiable. In fact, the IEBC was held in contempt of court for refusing to open its servers to scrutiny during the August 2017 presidential petition.
The IEBC’s refusal to comply with court orders is emblematic both of state capture of electoral processes and of the lack of political will to comply with the rule of law. In September 2017, the Supreme Court’s majority decision stated that the record of results must be accessible in a way that allows the public to understand and crosscheck them. This ruling could act as a springboard for publicly driven ideas about what such a record would look like.
Despite constitutional guidelines and other electoral regulations that try to ensure that parties are broadly representative, the lack of enforcement means that political parties are still largely based on ethnic identity. Moreover, parties remain deeply undemocratic. Primaries are often chaotic and violent affairs, marked by opaque vote counting and candidates’ purchase of nominations, sometimes in clear opposition to voters’ wishes.
Amending the Constitution will not address parties’ lack of commitment to democracy. One key reform that could help, however, is the strengthening of the Office of the Registrar of Political Parties. A strong Registrar who is committed to the law could ensure that parties establish and maintain high standards of democratic practice. To date, however, a permanent Registrar has not been appointed.
IEBC Independence and Integrity
The IEBC’s independence has been questioned for a number of reasons, including commissioners’ partisan statements and evidence of internal divisions based on political biases. The Commission’s integrity has been tainted by multiple allegations of corruption related to procurement of electoral technology. In fact, a post-election audit report revealed that the costs of KIEMS kit preparation and technological project management were overpriced and unnecessary; companies were even engaged and paid without signed contracts.
Kenyan laws provide clear guidance for procurement as well as for the ethical standards expected of IEBC commissioners. Real change depends on strict enforcement of already strong law, which will free the IEBC from the State’s influence and make it accountable to the people.
Kenyan elections are in dire need of reform, but it is unclear that constitutional amendment is an urgent priority. In fact, it is apparent that the bulk of reform for the most urgent issues lies in implementation of existing law. Voters are meant to be at the centre of electoral processes, and administrative procedures in relation to the vote must actively facilitate voters’ roles in the entirety of the electoral process instead of conferring it as a privilege. Some very targeted constitutional change may be necessary in the long term, but the most critical priority now is how to breathe new life into the Constitution.