Kenyan court ruling puts ‘election observer industry’ in a tight spot

AFP (Archive)|International election observers at a ballot materials warehouse ahead of the March 4, 2013 polls.

Kenya’s Supreme Court Friday ruling nullifying last month’s presidential election has raised questions about international election monitors' assessment that the 2017 polls were free and fair.


Just days after the August 8 Kenyan presidential election, with the opposition crying foul and the death toll from clashes between police and protesters steadily mounting, international election observers pronounced their initial verdicts on the 2017 polls.

It was an assessment guaranteed to please the ruling party, the country’s business community, as well as international investors with huge stakes in East Africa’s biggest economy.

The election was fair, the international observers declared in their first assessments, before proceeding to hail Kenya as a beacon of democracy in the continent.

Former US Secretary of State John Kerry, who led the Carter Center’s observer mission in Kenya, noted that, “Kenya has made a remarkable statement to Africa and the world about its democracy and the character of that democracy. Don’t let anybody besmirch that.”

Former Ghanaian President John Mahama, who led the Commonwealth observer mission, said the East African nation’s voting and counting system appeared "credible, transparent and inclusive" and that Kenya had “the potential to be the most inspiring democracy in Africa.”

Overriding opposition leader Raila Odinga’s claims that the poll had been rigged, the country’s election commission, the IEBC (Independent Electoral and Boundaries Commission), declared the incumbent, Uhuru Kenyatta, the winner with 54 percent of the vote. The international community promptly accepted the results of the vote, with world leaders such as US President Donald Trump calling Kenyatta to congratulate him on his victory.

Haunted by the bloodshed following the contested 2007 elections -- which killed more than 1,200 people – international observer missions in the aftermath of last month’s poll appeared focused on maintaining order. When the opposition candidate’s call for a national strike triggered a heavy-handed police response that killed at least 28 people -- including a baby and a nine-year-old girl – some of the statements by international observers appeared more focused on chiding Odinga for being a sore loser than on shedding light on the allegations of irregularities.

“Anybody who has a grievance knows what he should do. No Kenyan blood should be shed because somebody is aggrieved with the electoral process,” said Mahama, without naming the aggrieved person in question, but leaving little doubt about his identity. Kerry even cited his own 2004 US presidential defeat to George W. Bush. “I know what it’s like to lose an election,” said Kerry at a press conference in the capital, Nairobi, before adding, “But you gotta’ get over it and move on.”

A problem with the election observer industry’

That’s precisely what most Kenyans and outside observers believed would happen in a country bedeviled by rampant corruption and low levels of trust in the judiciary. Odinga himself initially expressed no confidence in the judiciary before finally relenting and taking the case to court.

So when Kenya’s Supreme Court ruled this Friday, September 1 that the August 8 election had not been "conducted in accordance with the constitution" and declared it "invalid, null and void," the historic decision caught everyone by surprise.

“A just ruling should not be such a shock, but this ruling was completely unexpected,” said Muthoni Wanyeki, who served as Amnesty International’s East Africa Regional Director during the August election and is currently Open Society’s incoming Africa director. “I think with this ruling, the Supreme Court has redeemed itself.”

The same, unfortunately cannot be said for international election observers, according to Wanyeki. “It shows there’s a problem with the election observer industry. They focus too much on the pre-electoral process and the process of voting. The problems are always with the counting and the tallying. They don’t focus on that enough, they don’t have the resources to look into that,” she explained.

Some of them just have big names’

While welcoming Friday’s ruling, Odinga too called for a re-examination of the role of the Kenyan election's international observers, who put the country's stability ahead of the election's credibility and, he said, had "moved fast [in order] to sanitise fraud."

It was not the first time the Kenyan opposition had criticised the international monitors. Days after the election results were announced, a member of Odinga’s political alliance, NASA (National Super Alliance), called for a vetting of foreign monitors to check if they had any relationship with the government.

“Some of them just have big names but have nothing to offer on matters of observing the elections,” NASA deputy chief agent James Orengo told the leading Kenyan daily, The Nation.

Former African statesmen such as Mahama and South African Thabo Mbeki, who led the African Union observers mission, came in for particular criticism. “I have a lot of respect for Mr. Mbeki as he is a statesman and a patriot, but the African Union should have vetted him before sending him to Kenya,” said Orengo.

At a Nairobi press conference days after the results were declared, senior Kenyan trade union activist Francis Atwoli was excoriating in his comments to the press. “You don’t just visit one primary school where voting takes place and make a conclusion that everything is right. I have been an observer in Zambia, Zimbabwe, Nigeria and Ghana, and my experience is that one needs to do a lot of background checks on the electoral system of that particular country before making the final conclusion. The observers did not do their work properly,” he said.

Their attitude is condescending, neo-colonial’

A familiar sight during elections in numerous African nations as well as other countries emerging from conflict, international election observers have to fulfil a difficult job, often in dangerous places. Critics accuse them of flying in days before the elections, watching the voting process at scattered polling stations, then holding a press conference at a hotel in the capital at the end of the day before flying back home.

But Roland Marchal of the Paris-based National Centre for Scientific Research (CNRS) urged moderation. “I think we have to be fair,” said Marchal in an interview with FRANCE 24. “We have to understand that their mandate is to verify, not to monitor. So, basically what they did was to make sure before the elections that the legalities are enforced and on the day of the election, they made sure that people could cast their vote freely. Beyond that, they weren’t really involved, or they were too few to have a precise vision of what went right and what went wrong -- specially in the processing of the results from the local polling stations up to the national headquarters of the electoral commission.”

Odinga’s camp maintains that irregularities -- including unsigned and fake tally forms, hacked servers and deliberate miscounting -- had affected around one-third of the 15.5 million votes cast.

A new, $24 million system, which was supposed to scan tally sheets and post them online immediately, broke down across the country. In addition, a court registrar’s report found that the IEBC failed to provide Odinga’s alliance full court-ordered access to its servers, which was necessary to back up the opposition’s allegations of hacking.

Responding to the criticisms against international election observer missions, the Carter Center said Friday that Kerry's mission had noted that "the electronic transmission of results proved unreliable."

But in his comments to the press shortly after the election, Kerry stressed that, “In the end let me emphasise: it is the paper ballots and the accounting process established by the IEBC that tell the story of this election, not the electronic transmission of those numbers.”

The rush by international election observers to declare the 2017 election free and fair shocked Kenyan civil society activists, many of whom have faced increasing levels of harassment and threats since the August 8 election.

“I feel a real anger about the way they treat us. I’ve had diplomats say to my face that, speaking in the light of history, this election was an improvement [from past elections]. I’m sorry we do not live in history, we live in the here and now and we have a right to free and fair elections,” said Wanyeki. “Their attitude in condescending, neocolonial and by saying things are improving, they’re treating us like small children. Hopefully this ruling is like egg on their face.”

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