The Kenya Forum | US-based watchdog gives report on legality of Kenya's election - The Kenya Forum

December 3, 2013


US-based watchdog, the Carter Center, gives its report on the legality of Kenya’s presidential election, includes recommendations.

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US-based watchdog gives report on legality of Kenya’s election

US-based watchdog gives report on legality of Kenya’s election

The US-based Carter Center deployed a team of 52 observers from 27 countries to monitor Kenya’s elections held in March 2013 at the request of the Independent Electoral Boundaries Commission (IEBC) ‘to provide an impartial assessment of the electoral process’. The Center’s ‘Final Report’ was released last week.

Below is a summary of the conclusions and recommendations contained in the Carter Center Report. To access the full 139-page report, link here.


Conclusions and Recommendations

In practice, the 2013 elections were a dramatic improvement compared to 2007, but the reform process is far from complete. The elections were largely peaceful and for that all Kenyans deserve to be congratulated, especially the presidential and other candidates who failed to win seats but accepted the results.

While the elections were relatively peaceful and well-organized, The Carter Center international election observation mission highlights areas for improvement. These improvements can be grouped into three main elements: legal reforms, political party practices, and election management.


Legal Framework

Overall, Kenya largely fulfilled its obligations to ensure that a sound and comprehensive legal frame work was in place for the 2013 elections. Although the Center is disappointed in the several weaknesses, Kenya’s constitutional and legislative reforms provided Kenyans with the basic framework for genuine democratic elections.

The Carter Center especially regrets that the Kenyan Parliament failed to pass specific legislation to ensure that women would occupy at least one-third of all elected offices.

Another disappointment was the failure of the outgoing Parliament to introduce new political party funding regulations to govern the 2013 elections.

Electoral System

Kenya has embarked on an ambitious political and electoral reform project in the redesign of elected representation and the creation of an entirely new county level of administration.

Although it may be several electoral cycles before the specific effects of the electoral system become apparent, the overall framework creates more opportunities for Kenyans to seek elected office and participate in public affairs.

Election Management

The IEBC faced more scrutiny in the 2013 elections than any other Kenyan political institution.

Early problems with the tender and procurement of biometric voter registration equipment produced ripple effects throughout the entire electoral calendar.

Nevertheless, overall the IEBC appears to have largely fulfilled its mandate in these elections.

Issack Hassan and the other commissioners did a good job of balancing different pressures while trying to deliver on-time elections.

Voter Registration

The IEBC largely met its responsibilities to build an accurate and comprehensive voter register under significant time constraints, some of which were beyond its control.

Voter Education

While the IEBC worked closely with outside partners to develop voter education programs, Carter Center observers noted a lack of technical and financial support from the IEBC in the implementation of these programs.

Nevertheless, high voter turnout and the number of valid votes cast reflect positively on voter awareness of the elections and how to cast a ballot.

Candidates, Parties, and Campaigns

Overall, Kenya largely met its obligations to ensure the right to participate in public affairs, including the right to vote and to seek elected office. However, the Center also observed the effects of highly differential levels of wealth and resources available to candidates, especially for the presidency and particularly for all women candidates.

Voting, Closing, and Counting

Kenya largely met its obligations in the conduct of polling and counting operations in the 2013 elections, despite the failed implementation of electronic voter identification technology.

Kenyans’ right to participate in public affairs, as voters, election officials, and candidate agents on election day was widely observed by the Center.

Tabulation and Results

Overall, Kenya partially fulfilled its obligations to ensure that the will of the people, as expressed through the ballot box, was accurately recorded and communicated. Important provisions were implemented to increase transparency while maintaining adequate security for the integrity of the ballot box. However, several areas of improvement are evident.

There were several important differences in the administration of the results process in 2013 compared to 2007 that likely contributed to a broad acceptance of the outcome of the elections.

1. There appears to have been a popular renewal of public confidence in the judiciary with the improved vetting of magistrates and the appointment of a trusted individual, Willy Mutunga, as chief justice of the Supreme Court.

2. The IEBC systematically updated the results of the presidential election and less frequently the results of other types of elections with live public statements on TV and radio.

3. The presidential candidates themselves demonstrated their commitment to the electoral process and independence of the IEBC’s administration of the elections. They accepted the election results as credible and where they did not, as described in the next section, took their petitions to the appropriate legal channels.

Electoral Dispute Resolution

Kenya’s judicial institutions and framework for managing electoral disputes met the country’s obligations to provide citizens with the right to appeal in a timely and public fashion.


For future elections, The Carter Center makes the following recommendations:

To the IEBC

Voter Registration

• Voter registration could be more inclusive by improving popular awareness, extending the periods for both registration and public scrutiny, and the deployment of a greater number of registration kits.

• The voter registration effort should be extended to facilitate the full enfranchisement of prisoners and hospitalized voters.

• The IEBC should refrain from using the “green book” to identify voters for any election as this manual register has not been stripped of its double entries and is a manual list of voters without the biometric data that provides the level of security set by the IEBC and requested by the Kenyan people.

• Measures should be implemented to improve registration in all regions and population groups where registration rates were well below average.

IEBC Management

• The tender and procurement processes and/or management team should be reviewed and revised to ensure the independence of the IEBC and transparency and absence of corruption in contracting for supplies, equipment, and services.

• The principal technology applications acquired for the 2013 elections (notably, biometric voter registration, the electronic voter identification device, and the system for electronic transmission of provisional results) should be reviewed with specific attention to the integration of technology management and the IEBC’s other critical processes such as political party liaison, public information, logistics, and security.

• The structural organization of the IEBC should be reviewed with special focus on decision making and the publication of decisions, rules, and procedures.

Voter Education

• Voter education programs should be designed and conducted well in advance of any election. The

IEBC’s partnership with civil society organizations to conduct voter education was welcome but will be more effective if outlines and curricula are prepared in collaboration and in advance. The IEBC has a constitutional responsibility for voter education and should provide leadership in this regard.

Voter Identification

• Should electronic voter identification technology be retained for future elections, the IEBC should do so only after a thorough assessment of lessons learned and a cost-benefit analysis that includes consideration of the high costs of the technology, staff training, and deployment of the equipment compared to the actual security provided to the voting system. If the electronic voter identification device is to be used again, logistical planning needs to be strengthened, especially to provide alternative ways to charge the device in areas where electricity is not widely available.

• The introduction of voter cards that are distinct from the issuance of identification used for other purposes should be considered, since it is well-established that difficulties of acquiring identification can lead to the disenfranchisement of women, pastoralists, and minorities.

Voting and Counting

• The procedures for the conduct of election day should be reviewed to avoid mistakes and contradictions and clarified for subsequent election manuals.

• The procedures for tabulation of votes should be established well in advance and be detailed so as to prevent inconsistencies in the processing of results.

• Polling stations with fewer than 100 voters should be merged with others to avoid wasting resources and to protect the secrecy of the vote.

• The number of voters per polling station should be reduced to 500 maximum. The streaming mechanism is too complex and confusing for voters who must appear in locations with many dozens of polling streams. The number of streams should be reduced at any one location or more locations created to avoid long queues and long waiting times to vote.

Tabulation and Results

• The IEBC is encouraged to provide detailed illustration of the layout of tally centers at constituency, county, and national levels with a clearly defined flow of materials and the responsibilities of election officials at each step. The procedures should also explain the review and audit of results by election officials to ensure adequate and transparent safeguards are in place. These procedures should be published well in advance and shared with all stakeholders.

• Access for elections agents and accredited observers should be accommodated at the constituency, county, and national tally centers so that they can adequately monitor the receipt, handling, and compilation of results. This will help to ensure the security and transparency of results and assist in detecting incomplete, inaccurate, or otherwise problematic tabulation forms and/or when administrative decisions at a higher level change the results that have already been released at a lower level.

• The IEBC should publish final official results from the polling station level through each phase of tabulation. Where results may not reconcile, for example because one or more polling station result was excluded from the tally for administrative or other reasons, this should be explained. Any discrepancies between the total number of votes cast across the six different elected offices should be explained.

To the Political Parties

• Change the calendar for the candidate nomination primaries in order to prevent party-hopping while ensuring due process is respected without jeopardizing the electoral calendar.

• Take all appropriate measures to strengthen the participation of women aspirants and candidates.

To the Government and Elected Representatives

• Review the electoral law and overall legal framework to ensure that all provisions and deadlines create a workable electoral calendar for the IEBC to implement.

• The 47 special seats for women, though a welcome measure, did not meet Kenya’s constitutional obligation to ensure at least one-third of all elected positions are filled by women. All political parties, especially those represented in the National Assembly and Senate, should work to reform the electoral law to meet this core commitment. Additional incentives could be provided to political parties to ensure a better representation of women in Parliament. For example, political finance legislation could provide financial incentives to parties in proportion to the number of women candidates.

• Introduce a political parties act that addresses the importance of equitable financial and other resources for political parties and candidates to create a more level playing field. Particular attention should be paid to campaign finance including possible public financing of parties, regulation of donations to parties, limits of campaign spending, and disclosure requirements.

• Based on an evaluation of the 2013 elections, assess whether or not modification of the electoral calendar inappropriate to either retain the conduct of all six elections on one day or whether separate election days are warranted.

• Establish and enforce a clearly defined campaign period.

To the Judiciary

• Continue the important reform process (e.g. strengthened vetting of magistrates) and establish clear performance targets to rebuild public confidence in the judiciary.

• Review the 2013 experience with electoral dispute resolution to generate a written record of best practice in electoral justice.

To the Security Forces

• Continue the initial improvements that have been implemented at the very top of the leadership hierarchy (e.g. public access and civilian review of key appointments) to re-instill the spirit of public service and accountability in the police force.

• Identify and address the challenges facing police in the conduct of their duties (e.g. conditions of work and wages, equipment and facilities) to provide incentives to individual officers to resist inducements from political actors, criminals, or other outside actors, especially during electoral periods.

• Enhance training in human rights and community policing for all members of the police force, with special reference to the intersection of electoral offenses and ongoing security concerns in Kenya.


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