Krigler Report Commission Report, An Audit of its implimentation by TI- Kenya

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Kriegler Commission Report: An Audit of its Implementation

Status Audit of Kriegler Recommendations

Review of the Implementation of the Kriegler Commission Report

Table of Contents EXECUTIVE SUMMARY.....................................................................................................................4

LIST OF ABBREVIATIONS................................................................................................................5 ACKNOWLEDGMENTS......................................................................................................................6 1.1 INTRODUCTION...........................................................................................................................7

1.2 REVIEW OF LITERATURE........................................................................................................7 1.2.2 The Report on the Independent Review of Elections Commission

(IREC). .................................................................................................................................9

1.2.2.1 Critique............................................................................................................................11 1.2.3 The Commission of Inquiry into the Post-election Violence -CIPEV

(Waki) Report.................................................................................................................11

1.2.3.1 Implementation of the CIPEV Report................................................................13

1.2.3.2 Rationalizing the Debate..........................................................................................14

1.2.4 The Constitution of Kenya, 2010..............................................................................14 1.2.5 KNDR Monitoring Reports..........................................................................................17

Resolving Disputes: settling electoral disputes efficiently and effectively..................20 1.3 IMPLEMENTATION MATRIX ON THE STATUS OF THE KRIEGLER REPORT

RECOMMENDATIONS.............................................................................................................21

1.3.1.1 Challenges and gaps identified in the constitutional and legal

framework ...........................................................................................................................23

1.3.1.2 Recommendations.....................................................................................................27

Conclusion............................................................................................................................................27 1.3.2 Structure and composition of the electoral management body...............27

1.3.2.1 Challenges and gaps identified in the EMB......................................................32 1.3.3 Role of political parties, civil societies, the media and observers.............34

1.3.5 Concerning Civil Society Organizations (CSOs) and Elections Observers

(EOs) and Faith Based Organizations (FBOs)..................................................37

1.3.4.1 Challenges and gaps identified in public participation in the electoral

process and the electoral environment: the role of political parties, civil societies, the media and observers.......................................................................39

1.3.5 Electoral preparations..................................................................................................42

1.3.6 Concerning registration of voters............................................................................45 1.3.7 Concerning Nomination of candidates..................................................................45 1.3.8 Concerning electoral preparation...........................................................................46

1.3.9 Concerning voter information and education....................................................47

1.3.10 Concerning regulation of political campaigns................................................48 1.3.11 Concerning regulation of freedom of expression and equitable access

to media ...........................................................................................................................50

1.3.12 Concerning technical assistance received by the ECK.................................51

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1.3.13 Concerning management of polling day operations....................................51 1.3.5.1 Challenges and gaps identified in electoral preparations........................53 1.3.6 Vote counting, tallying and announcement of results...................................54

1.3.7 Post-election procedures............................................................................................56 1.3.7.1 Challenges and gaps identified in post election procedures...................56

1.4 CONCLUSION....................................................................................................................58

Annextures..................................................................................................................................61

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Executive Summary The IREC (Kriegler) report underlined the need for transparent electoral processes and systems in order to ensure, free, fair and democratic elections in future. The report sought to highlight the issues that led to the incidence of the 2007-2008 post-election violence. It also made recommendations as to how to avoid the tragic events that gave rise to the Commissionâ&#x20AC;&#x2122;s appointment. The recommendations revolved around six main issues: the countryâ&#x20AC;&#x2122;s constitutional and legal framework relating to elections, structure and composition of the electoral management body, the electoral environment and the role of political parties, civil societies, the media and observers, electoral preparations, vote counting, tallying and announcement of results and postelection procedures.

This report applies a forward-looking perspective to review the status of implementation of the recommendations made by the Kriegler Commission. Two key methodologies were used in developing this report, namely literature review of relevant secondary sources including but not limited to the Constitution of Kenya 2010, The Commission of Inquiry on Post Election on Post Election Violence (CIPEV) Waki Report, the Kenya National Dialogue and Reconciliation (KNDR) reports on the status of implementation of Agenda Item 4 reforms. Key informant interviews on both supply and demand sides as prescribed by the client were conducted with a view to identify the current state of implementation. It reveals the people-centred reform measures that have been undertaken by the concerned institutions.

The gaps and challenges in implementing the recommendations have been identified. This Report also makes an exposition of possible constitutional, legal and policy measures that have been put in place to fill in the gaps identified by way of an implementation matrix. Finally it offers proposals for further reforms based on the respondentsâ&#x20AC;&#x2122; views.

List of Abbreviations AG: AU: AP: CEO CIC: CIPEV: CIOC: CRA: CSOs: DPP: EACC: ECK: EMB: EOs: FBO IIBRC: ICC: IDP: IEBC: IIEC: IPOA: JSC: KACC: KNCHR: KNDR: KNHREC: K-NICE: MCK: MP: NCIC: NGO: ODM: PEV: PNU: PRIC: RPP: TI-Kenya: TJRC: USAID:

The Attorney General African Union Administration Police Chief Executive Officer Commission for the Implementation of the Constitution Commission of Inquiry into the Post-Election Violence Constitutional Implementation Oversight Committee The Commission for Revenue Allocation Civil Society Organizations Director of Public Prosecutions Ethics and Anti-Corruption Commission Electoral Commission of Kenya Electoral Management Body Elections Observers Based Organizations Faith Based Organisation Interim Independent Boundaries Review Commission International Criminal Court Internally Displaced Person Independent Electoral and Boundaries Commission Interim Independent Electoral Commission Independent Police Oversight Authority Judicial Service Commission Kenya Anti-Corruption Commission Kenya National Commission on Human Rights The Kenya National Dialogue and Reconciliation Kenya National Human Rights and Equality Commission Kenya National Integrated Civic Education Media Council of Kenya Member of Parliament National Cohesion and Integration Commission Non-Governmental Organisation Orange Democratic Movement Post Election Violence Party of National Unity Police Reforms Implementation Committee Registrar of Political Parties Transparency International Kenya Truth, Justice and Reconciliation Commission U.S. Agency for International Development

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Acknowledgments Transparency International Kenya (TI-Kenya) would like to extend her gratitude and appreciation to the invaluable contribution of various institutions and persons that yielded this body of knowledge.

TI Kenya recognizes the contributions from TI Kenya staff members: Dalmas Okendo - Ag. Head of Programmes, Ambasa Elijah and Debra Gichio - Programme Officers, Governance and Policy, Dorah Nesoba â&#x20AC;&#x201C; Programme Officer Advocacy& Communications, Nelius Mukami- Deputy Programme officer Governance and Policy, Mary Conceptor Nzakuva, Jackline Warui and Diana Wakesho -Programme Interns are all appreciated. TI-Kenya would like to thank the research consultant, Dr. Julie Oseko for conducting the study and writing the paper.

TI-Kenya is highly indebted to the respondents in the research for their participation in this study. Their expertise and experience yielded this important literature. They include the following institutions: the IEBC Vice Chairperson Lillian Mahiri-Zaja, IEBC Constituency Elections Coordinators for Starehe, Juja, Naivasha and Kajiado North as well as Judiciary officers. Others are KHRC, CITAM Karen (Pentecostal Church), Kenya National Dialogue and Reconciliation (KNDR).

Further appreciation goes to all TI-Kenya staff for their participation in the various peer reviews and their further input in the paper. This study would not have been possible without the funding from our Development Partners, the U.S. Agency for International Development (USAID).

1.1 Introduction This report reviews progress in addressing long standing issues identified under the Kenya National Dialogue and Reconciliation (KNDR) agreements signed between the Government/Party of National Unity (PNU) and the Orange Democratic Movement (ODM) under the chairmanship of Mr. Kofi Annan of the African Union’s Panel of Eminent Personalities. The issues are constitutional review and institutional reforms; land reforms; poverty and inequality, and regional imbalances in development; youth unemployment; national cohesion and unity; and, transparency, accountability and impunity. The KNDR mediation noted that Agenda Item 4 reforms are an important prerequisite for sustainable peace, security and stability. Further, the Kriegler report as commonly referred to categorically stated that Kenya has to implement deep running electoral reforms if the country is to avoid a similar situation as occurred after 2007 general elections.

This report, therefore, focuses on the progress made on each item of Agenda 4. TI-Kenya believes that the quality of governance is as good as the process that created the governors. It is therefore of utmost importance that the reforms as recommended by the Commission be implemented before the upcoming elections. Through this report, TI-Kenya has tracked progress made so far on the policy, legal and regulatory fronts to actualise the recommendations. This report has identified gaps and lapses and makes necessary recommendations because each item is central to securing peace and stability in Kenya.

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1.2 Review of Literature

1.2.1 Background An orgy of violence broke out after Kenya’s disputed Presidential election of December 27, 2007 and left about 1,500 Kenyans dead. The violence lasted from December 2007 to February 2008. It was reported that 350,000 people were forcefully displaced and rendered homeless, while some were burned alive in churches. Nearly 10,000 were pushed across the border into Uganda as refugees. Historical injustices relating to access to resources such as land, capital and opportunities in the modern sector may have created the hostile environment within which the post-election violence unfolded. What actually turned parts of Kenya into ethnic killing fields, however, is a noxious blend of an increasingly weak consensus around the Kenyan civic nation, the fragmentation of the elite and the consequent rise of ethnic nationalism. Following Kenya’s return to multiparty politics in 1991 after the repeal of Section 2A of the Constitution hence ending the de jure one-party rule, the dangerously fragmented, ideologically bankrupt and predatory elite scurried to its respective ethnic cocoons, cynically manipulating entrenched genuine grievances and competition over scarce resources among Kenya’s 42 ethnic communities to divide and win power. Perpetrators of the 2008 violence exploited a new culture of impunity where cycles of violence became an indelible feature of multiparty elections in 1992, 1997, 2002 and 2007.

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The end of the fighting was achieved through the mediation of former UN General Secretary Kofi Annan under the African Union’s Panel of Eminent Personalities, who led the Kenyan Government towards a shared power agreement between the re-elected President Mwai Kibaki and the newly introduced figure of Prime Minister, found in Mr. Raila Odinga. On 28th February 2008, a peace agreement was signed between the Party of National Unity (PNU) and Orange Democratic Movement (ODM) in an attempt to bring to an end the spiraling violence.

Agenda One: immediate action to stop violence and restore fundamental human rights;

This agreement led to a proposal that would later lead to the formation of a grand coalition between the two parties. The Annan-led mediation process culminated in the signing of an “Agreement on the Principles of Partnership of the Coalition Government” and a “National Accord and Reconciliation Agreement” as part of a wider set of agreements. Specifically, the Agreement on the Coalition Government noted that “neither side can realistically govern the country without the other. There must be real power-sharing to move the country forward and begin the healing and reconciliation process.”1 The Agreement committed the parties to enacting the National Accord and Reconciliation Act 2008, which made provisions for “a Prime Minister of the Government of Kenya, with authority to coordinate and supervise the execution of the functions and affairs of the Government.”2 The Tenth Kenyan Parliament subsequently passed the National Accord and Reconciliation Bill 2008, which entrenched the Agreement into the Kenyan Constitution. The Bill became law and President Kibaki and Prime Minister Odinga entered into an arrangement for a Grand Coalition Government of Kenya. In addition, the Agreement created two positions of Deputy Prime Ministers, as part of a 42-member cabinet that sought to establish a balance of Ministers from the parties to the coalition agreement. The Agreement stipulated that “the composition of the coalition Government shall at all times reflect the parliamentary strength of the respective parties and shall at all times take into account the principle of portfolio balance.”3 The mediation process presented the parties with a framework comprised of four main components: • Agenda One: immediate action to stop violence and restore fundamental human rights; • Agenda Two: addressing the humanitarian crisis and promoting national reconciliation; • Agenda Three: negotiations on how to overcome the current political crisis; and, • Agenda Four: Developing long-term strategies for durable peace.

The Annan mediation effort also led to the parties to agree to establish a sevenmember Independent Review Commission into the Kenyan elections, to be headed by the retired South African Judge Johann Kriegler.4 1

Kenya Agreement on the Principles of Partnership of the Coalition Government and the National Accord and Reconciliation Act, 28 February 2008, Preamble. 2 National Accord and Reconciliation Act No. 4 of 2008. 3 Ibid. 4 Through the Gazette Notice no 1983 of 2008, the President appointed a 6 member Commission to Inquire into all aspects of the 2007 General elections with particular emphasis on the presidential elections. The Commissioners were:

1.2.2 The Report on the Independent Review of Elections Commission (IREC) (The Kriegler Commission Report) Through the Gazette Notice no 1983 of 2008, President Mwai Kibaki appointed a six member Commission to Inquire into all aspects of the 2007 General elections with particular emphasis on the presidential elections. The Commissioners were: Judge Johann Kriegler (Chairman) a retired South African Constitutional Court Judge and chair of South Africa’s first independent Electoral Commission, Prof. Marangu M’Marete, Francis Angila, Catherine Mumma, Lucy Kambuni and Horacio Boneo. The Commission was mandated to examine all aspects of the controversial 2007 presidential poll through consultations with officials of the Electoral Commission of Kenya (ECK), election observers, politicians, and citizens. Its mandate also comprised reviewing “the organisation and conduct of the 2007 elections, extending from civic and voter education and registration through polling, logistics, security, vote-counting and tabulation to results-processing and dispute resolution.”5 In addition, the Commission was tasked with assessing ‘the structure and composition of the ECK in order to assess its independence, capacity and functioning’ and to “recommend electoral and other reforms to improve future electoral processes.”6 The ensuing recommendations were meant to be the touchstone for the re-establishment of the confidence of the Kenyan people in the electoral system, and for avoidance of the kind of crisis witnessed in 2007, in Kenya’s future electoral calendar. The report found that the Kenyan voter register “is materially defective” in a way that effectively impairs “the integrity of the election results.”7 Crucially, it also noted that the “numerous implausibly high turnout figures reported in the strongholds of both main political parties evidence extensive perversion of polling, probably ballot-stuffing, organized impersonation of absent voters, vote buying and/or bribery.”8 The report also stated that during the elections, “in many instances (in the strongholds of both main political parties), effectively only the majority party was represented during polling and counting.”9 The Report stated that voting irregularities were committed in the strongholds across the political divide. It further noted that “a likely facilitator and catalyst for ballot-stuffing … was the indulgence granted by the ECK shortly before the elections for “black books” (in which the names of voters had been entered at the time of registration) to be used in certain circumstances and for double registrants to be allowed to vote, contrary to previous regulation.”10

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The report, in effect, was an indictment on the defunct Electoral Commission of Kenya of incompetence, laxity and a dereliction of duty in the conduct of the presidential polls and some parliamentary polls. This, in effect, made its continuing existence untenable. Indeed it noted that “the manner of appointment of commissioners and the structure, composition and management system of the ECK Judge Johann Kriegler (Chairman), Prof Marangu M’Marete, Francis Angila, Catherine Mumma, and Horacio Boneo. 5 IREC, Report of the Independent Review Commission on the General Elections held in Kenya on the 27 December 2007, Nairobi: Government Printers, 2008, p.3 6 Ibid. 7 Ibid. 8 Ibid. 9 Ibid. p.9.

10 Ibid.

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… [were] materially defective, resulting in such a serious loss of independence, capacity and functional efficiency as to warrant replacing or at least radically transforming it.”11

On the integrity of the results, the Commission noted that “although there is room for honest disagreement as to whether there was rigging of the presidential results announced by the ECK, the answer is irrelevant, as (i) the process was undetectably perverted at the polling stage, and (ii) the recorded and reported results are so inaccurate as to render any reasonably accurate, reliable and convincing conclusion impossible.”12

Ultimately, the Commission concluded that “the conduct of the 2007 elections was so materially defective that it is impossible – for IREC or anyone else – to establish true or reliable results for the presidential and parliamentary elections.”13 It concluded that the constitutional, institutional and legal framework for Kenya’s elections was so weak that it required an overhaul - including disbanding the Electoral Management Body that administered that election. The Commission recommended reconstituting the electoral legal framework to ensure fair and transparent political competition. Specifically, it proposed “that all laws relating to the operational management of elections should be consolidated under one statute” as opposed to the multiplicity that obtained then. In addition, it urged “that a separate law be enacted to facilitate the establishment of a special Electoral Dispute Resolution Court to handle appeal matters from the initial stages of dispute resolution by the ECK.”14 It further noted that the “culture of electoral lawlessness” which had become commonplace over many years “cannot be reversed without a concerted, non-partisan commitment to electoral integrity on the part of political leaders, which commitment will need to be sustained and monitored over time.”15 The Commission emphasized that a new body should be established and its capacity built to manage the elections in a manner that pass as peaceful, credible, free and transparent. The failure by ECK partly explains the violence that succeeded the 2007 elections. Indeed it was the subject of investigations by the Independent Review Commission. The Commission found that irregularities in the electoral process began at polling-station level and was rampant.

It made the determination that errors made in the various stages of the tallying process were so profound and widespread that it was impossible to reconstruct from the formal records, who had won the presidential duel. The Commission laid emphasis on the many computational errors it found and a majority of its members concluded that they had “not been able to substantiate …accusations [of]…malfeasance [at the national tallying centre].”16 In a sense, the Commission’s finding legitimized the negotiated construction of a government of national unity for the country.

11 Ibid, p.10 12 Ibid. 13 Ibid. p.9 14 Ibid. p22 15 Ibid. 16 Kriegler Commission Report 2008, Chapter 6, p. 131.

1.2.2.1 Critique The Kriegler Report, as lofty in its recommendations as it was, was not without limitations, the first of which flows directly from its very composition. Most of its members had a career legal background. Therefore, the finding that they could not “substantiate accusations of malfeasance” at the national tallying centre must be viewed through a strict legal prism, which raises the threshold for the admissibility of evidence and the burden of proof. In the matrix of a still-charge atmosphere, there might have been direct witnesses, but who for some reason or another were unwilling to either appear before the commission or testify on oath. It is to be noted that at the time, the witness protection mechanism in place were inadequate.

Secondly, the Commission also shied away from appreciating the significance or evaluating the suitability of the evidence that emerged from the exit polls conducted before the elections. While it is admitted that opinion polls are not accepted bases for deciding elections, in the absence of reliable data from the polls themselves, they invariably present the best evidence of the would-be likely winner. The results are normally superior to the flawed election returns in that they do not include any ballot-box stuffing, and are collected under strict controls by trained personnel and are normally free of computational errors.

Thirdly, the Commission completely ignored the role of the police and security as critical to the preparation and conduct of the electoral process. Their recommendations were therefore completely devoid of this component. That the state security agencies were used to compromise or manipulate the election results especially by the then incumbent executive and even past executives during past elections thus affecting election results was not canvassed. This Report to this extent will be unable to assess the institutional weaknesses or legitimacy of these agencies and furthermore to test the veracity of the ongoing police reforms within the context of the Kriegler Report.

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1.2.3 The Commission of Inquiry into the Post-election Violence (CIPEV) (Waki Commission Report) The National Accord and Reconciliation Agreement articulated the mandate of the Commission of Inquiry into Post-Election Violence. CIPEV, popularly referred to as the Waki Commission, began its work on 23rd May, 2008 and investigated “the facts and circumstances related to the acts of violence following the 2007 presidential elections” as well as “the actions or omissions of state security agencies during the course of the violence.”17 It was detailed to “make recommendations concerning measures to be taken to prevent, control, and eradicate similar violence in the future; bring to justice those responsible for criminal acts; eradicate impunity and promote national reconciliation.”18 The Commission was also mandated to make recommendations to the Truth, Justice and Reconciliation Commission (TJRC).

The Commission carried out its mandate by receiving views on the PEV from the 17 18

Ibid, p.21. Ibid, p.21-22.

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public and relevant institutions, such as the Kenya Police, through both public and private hearings. It was further empowered to require cooperation from relevant offices and institutions as necessary.

The Waki Report also noted that state security agencies “failed institutionally to anticipate, prepare for, and contain the violence.” In certain instances, “individual members of the state security agencies were also guilty of acts of violence, and gross violations of the human rights of citizens.”19 The Report cast doubts about the integrity of the judicial system to remedy the violence and the electoral irregularities of that time. It stated that the legitimacy of the judiciary was jaded as it was not sufficiently understood by the public at large and had therefore “acquired the notoriety of losing the confidence and trust of those it must serve because of the perception that it is not independent as an institution.”20 The Report attributed the failure by the leadership and members of the ODM to submit to the jurisdiction of the courts to resolve the dispute that arose after the general elections to this state of affairs.21 In terms of its operational efficiency, the Waki Report noted that the judiciary “has also been accused of delays in the administration of justice and for non-transparency in its functions.”22 To remedy this fact the Waki Report recommended that “nothing short of comprehensive constitutional reforms will restore the desired confidence and trust in the judiciary.” Other analyses have been conducted to explain the context within which the PEV occurred.23 There are many others who have posited it as a catastrophic consequence of impunity within the ruling class and the state; as due to the “normalization of violence” in society and also as a consequence of weak institutions that have been repeatedly abused. These are in one way or other then related to abuse of electoral processes and procedure which, for many, was the final trigger for the violent explosion. The Report made a number of key observations, highlighted in its executive summary including: • The PEV was unprecedented in all but two provinces in Kenya; • State security agencies failed to prepare for and anticipate or contain the violence; • The public service virtually collapsed; • The PEV was attributed to the institutionalization of violence after 1991 • The Personalization of Presidential Power and the Deliberate Weakening of Public Institutions; • The violence was partly planned and partly spontaneous. Where attacks were planned, the Report pointed to politicians and business leaders as the main orchestrators, and went ahead to present some evidence of this; • There were systematic attacks on Kenyans along ethnic lines with ‘guilt by association’ being the theme as the violence was deliberately directed towards particular communities perceived to be of certain (unpopular) political persuasion; Ibid. p. vii Ibid. p.462. 21 Ibid. p.462. 22 Ibid. p. 473 19 20

See the CIPEV Report; IREC, Report of the Independent Review Commission on the General Elections held in Kenya on the 27 December 2007, Nairobi: Government Printers, 2008; International Crisis Group, Kenya in Crisis, Africa Report no. 137, 21 February 2008; KNCHR, On the Brink of the Precipice: A Human Rights Account of Kenya’s Post-2007 Election Violence, Nairobi: KNCHR, 2008; Susanne Mueller, ‘The Political Economy of Kenya’s Crisis,’ in Journal of Eastern African Studies (JEAS), vol. 2, no.2, 2008; essays in Journal of Contemporary African Studies, vol. 27, no. 3, 2009.

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The institutions responsible for upholding the rule of law virtually collapsed and failed to act on intelligence and other warnings.

The Report made some recommendations on how to improve the performance and accountability of State security agents as well as recommendations on the way forward. In a very intelligent fashion, and in a bid to break the cycle of impunity and non-implementation of probe reports, it recommended the establishment of a special tribunal for Kenya with a three-pronged mandate to investigate, prosecute, and adjudicate crimes related to the PEV. The special tribunal would apply the principles of the International Crimes Bill (now Act) as well as Kenyan law. It also provided an opportunity for parties to the National Accord to agree on the establishment of the special tribunal. The Report provided for a timeline of sixty days within which an enabling statute would be enacted.

The Waki Report highlighted the culture of impunity, and presented options for redress namely the creation of a Special Tribunal, failure to which the International Criminal Court (ICC) at the Hague option would take effect within 60 days. The Report also identified institutional reform specifically of the security agents, which it indicted for failing to act on intelligence, lack of preparedness and poor coordination. It also recommended suspension from duty public officials listed as suspects and blacklist them from holding public office if they are convicted. Among the raft of other recommendations floated were that the State set up a National Security Advisory Committee to conduct a review of the Kenyan intelligence security machinery; the National Security Intelligence Service (NSIS) submit annual security/intelligence reports to parliament.

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The Report recommended that the State undertake a comprehensive review of the police force including developing a code of conduct and integrating the Administration Police (AP) into the police service. It urged the hastening of police reforms in order to restore public trust in the political neutrality of the police. For monitoring and evaluation purposes, progress reports were to be submitted to the African Union (AU).

1.2.3.1 Implementation of the CIPEV Report Since the publication of the report, efforts have been put in place to implement some of the recommendations which did not have self-implementing mechanisms. However, there are of issues that require disciplined effort to resolve. • Social re-engineering and the curse of traditions: apart from the urban society, there is a sense of ethnic chauvinism where the limit of accountability for conduct is the tribe. In some communities, chivalry is quantified in terms of hostile engagement with other tribes, with such heinous acts as murder and rape being commonplace. Moral integration inevitably would require self-examination and social re-engineering aimed at enhancing inter-ethnic social cohesion thus developing a sense of collective morality. • The absence of elite consensus: intelligentsia in any country must subscribe to certain common/agreed on values – a must in any democracy.

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absence of elite consensus: intelligentsia in any country must subscribe to certain common/ agreed on values – a must in any democracy.

This demand developing a minimum set of shared values and expectations debunking the practice of recruiting tribesmen to engage in primordial consciousness as a means of gaining advantage in the perpetual competition between elites. Such practices negate the very principles of growing a democracy and should be checked. The next level in the war against impunity: the most common cases of impunity include grand corruption and unfair contract awards. Some of these can be checked by setting up institutions to reduce impunity in public office. The biggest challenge of impunity is where the pursuit of political office leads eminent persons to abuse their constitutional responsibilities as far as devaluing the lives of the lowly or of opponents for political gain. This level of impunity was evidenced in the recent PEV and begs urgent redress.

1.2.3.2 Rationalizing the Debate Waki Report lists eight main causes of post-election violence. A point has to be made that a trigger factor is required to shift a country with underlying tensions from a peaceful to a violent state; the immediate cause of the skirmishes was the mismanagement and likely adulteration of the outcome of the presidential vote. There were also intermediate causes: the role of the media and hate speech and the predominance of ethnic politics. Finally, there were five underlying causes: an overly powerful executive, a centralized state with ethno-regional inequalities, and mismanagement of land, a history of impunity for violence and corruption, and poverty and youth unemployment. All these causes were intertwined and mutually reinforcing. 1.2.4 The Constitution of Kenya, 2010 The parties to the KNDR agreed to submit four items to the mediation process. An agreement was reached in respect of each of them. The parties concluded an “Agreement on the Principles of Partnership of the Coalition Government,” which recognized the need to address the “deep-seated and longstanding divisions within Kenyan society [that] threaten the very existence of Kenya as a unified country.” This called for a “coherent and far-reaching reform agenda, to address the fundamental root causes of recurrent conflict, and to create a better, more secure, more prosperous Kenya for all.” It is this agreement that enabled the establishment of a coalition government between the PNU and the ODM. The coalition would then work towards resolving the identified long-term issues (otherwise referred to as Agenda 4 items), namely: undertaking constitutional, legal and institutional reform; tackling poverty and inequality; combating regional development imbalance; tackling unemployment among the youth; consolidating national cohesion and unity; undertaking land reform; and addressing transparency, accountability, and impunity. In these political agreements, the KNDR provided a fulcrum for transition agenda for Kenya, and the Constitution the touchstone for the realization of the other Agenda 4 items.

The cloud of terror that befell Kenya at the dawn of 2008 was largely attributable to a structurally flawed and politically maligned constitutional order. Indeed the Waki Report observed that successive amendments of the Constitution increased the powers of the president exponentially, thus giving him control over governmental agencies and leading to the emasculation of institutions with countervailing power such as the legislature and the judiciary.24 As a result, the legitimacy of these institutions suffered caustic erosion in the eyes of the public. Kenyan citizens saw these agencies and institutions as lacking impartiality and integrity. They lacked faith in the ability of the Electoral Commission to conduct free, fair elections, thereby increasing their tendency to resort to violence after “unfair” electoral outcomes.25

Further, the previous Constitution established a first-past-the-post electoral system and granted the president almost unfettered powers over the distribution of national resources, thus making the quest for the presidency a zero-sum game of winner-takes-all. Each ethnic community believed that capturing the presidency would guarantee almost exclusive access to national resources and public sector jobs since the president controlled their distribution. With the elections being utilized as a vehicle of accumulating, consolidating and exercising state power, the winner was often at a vantage point in utilizing to his advantage, the weaknesses of the old constitutional order. The holder would use highly draconian means, including the deployment of state security apparatus and authoritarian public order laws, to frustrate regime opponents clamoring for a new constitutional order. When this tactic did not succeed, it resorted to manipulating the process of constitutional reform by ensuring the passage of a constitutional review law that allowed the presidency to control the process.

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In a nutshell, the road to Constitutional reform in Kenya has been a treacherous one, hamstrung in very many instances by the political priorities of the day. While the Constitution was the result of a struggle that lasted for at least two decades, it was also part of Agenda Four of the National Dialogue and Reconciliation Mediation Process that former UN Secretary-General Kofi Annan chaired after Kenya’s disputed 2007 presidential elections and the widespread violence that followed. In this light therefore, the Constitution is an important pillar of Kenya’s transitional justice process. The Constitution of Kenya, 2010 therefore easily presents itself as the harbinger of reforms. It provides the general framework for accountability for past human rights abuses, of guarantees that they will not reoccur, and of reparations for victims. However, although the adoption of the Constitution is an important milestone, it is just a starting point in the long road to addressing the wrongs of the repressive past. Having crossed the hurdle of adopting the Constitution, Kenya now faces the challenge of realizing its promise of more inclusive citizenship through the new devolved system of government; reduced presidential powers and better separation of powers between the three arms of the government; a restructured and vetted judiciary; an expanded, enforceable bill of rights that includes social, 24 25

CIPEV Report. Kriegler Report.

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economic, and cultural rights; security sector and land reforms; environmental protection; and other key changes.

The implementation of the Constitution is fast becoming the arena of political controversies and duels. Already the single most challenge facing it is a political establishment that is distracted with positioning for the next general elections, at the expense of properly enacting legislation required by the new dispensation. There are also proponents of the status quo who are bent on interpreting provisions of the new Constitution as conservatively as possible. These are some of the challenges that require to be addressed collectively. The Constitution establishes rules, values, and principles that if implemented will facilitate the realization of equality and inclusive citizenship. It promises to end the political manipulation of perceptions of marginalization and exclusion that has contributed to inter-ethnic strife in Kenya. In this respect, the Constitution seeks to address the root causes of inter-ethnic conflicts, by: • •

• •

establishing national values and principles of governance that seek to diffuse ethnic tensions often fueled by perceptions of marginalization and exclusion; reforming the electoral system, which has been used as an instrument of inclusion and exclusion in sharing of national resources, with a view to ensuring that the voices of all segments of society are represented equitably in government and making elections less fractious; creating devolution mechanisms that seek to enhance fairness in the sharing of national resources; and establishing mechanisms to ensure fairness in land administration and to address historical land injustices that have often reinforced perceptions of marginalization and exclusion and triggered ethnic conflicts, especially during elections.

Further, the current Constitution raises the threshold for government accountability, by seeking to circumscribe the exercise of power in the three branches of government in general, and the security agencies in particular. In doing so, the Constitution of Kenya 2010 promises to prevent future violation of human rights and the commission of economic crimes.

Critically, however, the Constitution fails to establish the principles that would provide much-needed direction in terms of how the country should address past human rights violations, including the post-election violence and provide redress for the victims of such violations. Since Kenya does not have a coherent policy on addressing the past, the Constitution should have established timelines to ensure that prosecutions for post-election crimes take place within the shortest time possible to preclude the possibilities that the evidence required would be destroyed or lost.

The Constitution faces several challenges that are likely to confront its implementation. It is being implemented in a fairly polarized political environment,

in which the positions of the antagonists are defined by a desire to either capture or retain power in the new constitutional order. Proponents of the status quo constitute a formidable obstacle to the implementation of the new Constitution. In this endeavor, they are likely to be aided by the statutory order, which invariably gives the president, ministers, and public officers wide-ranging powers and discretion in execution. And since much of the government’s power resides in the statutory legislations, it can be expected that the proponents of the status quo will want to acquire, retain, consolidate and exercise as much power as they can. 1.2.5 KNDR Monitoring Reports The role of monitoring the progress made in implementing the agenda has been outsourced to the private sector. South Consulting has been monitoring progress in the implementation of key reforms since 2008. The latest report26 addresses the degree or level of preparedness for the first General Elections under the new Constitution. The Report recognizes the pitfalls identified by the Kriegler Report.27

The Report examines the state of electoral preparedness in the country. It is an assessment of the extent to which the country has revised its electoral processes and implemented actions to improve the management of elections. This review focuses on three priority areas – and corresponding indicators – that are critical for successful and credible elections: a) The Pre-election Environment: Setting a conducive environment for a successful and democratic electoral process;

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b) Election Management: Managing elections competently and inspiring public confidence in the electoral process; c) Resolving Disputes: Settling electoral disputes efficiently and effectively.

The Pre-election Environment: Setting a conducive context for a successful and democratic electoral process The review reports progress in improving Kenya’s electoral framework. The introduction of a Two-Round System or a run-off in the presidential election between the first two candidates -- if no candidate is able to garner over 50+1 per cent of the vote and 25 per cent in at least half of the 47 counties - is one measure introduced to ensure the winning candidate enjoys sufficient support in the country.28 It lauds the Constitution for having introduced quotas to ensure equity in representation along gender lines and to specifically address the historical 26

The Kenya National Dialogue and Reconciliation Monitoring Project: Reforms and Preparedness for Elections Review Report, May 2012. 27 The Report concluded that the constitutional, institutional and legal framework for Kenya’s elections was so weak that it required an overhaul -- including disbanding the Electoral Management Body that administered that election. The Commission emphasized that a new body should be established and its capacity built to manage the elections in a manner that pass as peaceful, credible, free and transparent. 28 The Kenya National Dialogue and reconciliation Monitoring Project: Reforms and Preparedness for Elections Review Report, May 2012, p.6

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challenges around the representation of women and marginalized groups. The challenge, it states, however, remains the lack of clarity on how to achieve this requirement without a constitutional amendment.29 It is also worth noting that in December 2012 the supreme court ruling on two-thirds gender principle, under Article 81b of the Constitution and in relation to the National Assembly and senate should progressive and be implemented by August 27, 2015 .30 To remedy this, the Report urges that the early warning and response mechanisms be strengthened. Additionally, it proposes conduct of concerted civic education on the new electoral system as stipulated under article 81of the Constitution, the run-off, and the electoral process.31

The Report observes that IEBC is enjoying trust and confidence among Kenyans with 80 per cent having confidence in the Commission. The Commission is rated second to media (90%) in terms of confidence in institutions that play a part in the electoral process. People’s confidence in political parties is relatively low (40%) compared to other institutions such as the Judiciary (67%). The parties are rated even lower than the police (43%), implying that people are dissatisfied with the ‘business as usual’ attitude of the political parties.32 The Report urges conduct of audit on media ownership in Kenya, and promulgating equitable access regulations under the Elections Act, 2011 and enforcing them.33 This trust and high level of confidence in the Commission is emanating from how the Commission was established; the Commissioners were hired through a competitive process and the relevant committee of Parliament vetted them. This, again, points to the importance of transparency in recruiting public offices. Competitive recruitment inspires public confidence in institutions. The IEBC is administratively preparing for the next General Election and is building capacity in key areas for the purpose. Although the Commission is moving forward in preparations to conduct the election, other key role players are not. Political parties are approaching the election without making a break with the past: they are yet to institutionalize the values and principles on which the idea of electoral reform is anchored.34 There is progress in enacting the required laws. However, enacting the laws is not enough. The test of any law is in its implementation and effective enforcement. There are concerns that the office of the Registrar of Political Parties is not active in enforcing the Political Parties Act and, therefore, many politicians continue on a ‘business-as-usual’ attitude. Parties are flouting the Political Parties Act without consequences for their action.35 The Report suggests that the promulgation of comprehensive regulations under the Political Parties Act, 2011, and that the Acting Registrar of Political Parties should enforce s. 14 of the Political Parties Act. It also recommends that the process of appointing a substantive Registrar of Political Parties be restarted.36 29

Ibid. Ibid. p.7 31 Ibid. p.7. 32 Ibid.p.6 33 Ibid. p.7. 34 Ibid. 35 Ibid. 36 Ibid.7 30

The Report points out that there exist grey areas in some of the laws, with some provisions of the Constitution being subject to multiple interpretations. The election date was itself a subject of litigation because of these multiple interpretations. The uncertainty over the election date should be addressed soonest in order to allow preparations to proceed without anxiety. In addition, litigation facing the boundaries review process has already delayed voter registration. Further delays in determining these cases will negatively impact the preparations.37 The report urges acceleration of the promulgation of regulations under the relevant laws. Additionally, it recommends speeding up of the preparatory work in the Campaign Financing Bill. Noting the centrality of the requirements and expectations of Chapter Six of the Constitution, it urges that the provisions of the Leadership and Integrity Bill be strengthened. Also suggested here is the speeding up of the process of hearing the lawsuits relating to the boundary demarcation process.38

It also records a poignant finding: That the environment for the next General Election is becoming increasingly divisive as politicians continue to mobilize along ethnic lines. The trials at the International Criminal Court remain a divisive issue, with discourses for and against the ICC. These divisions are feeding into the electoral environment through mobilization of political support. However, many Kenyans remain supportive of the ICC. They are keen to see an end to the culture of impunity and for there to be justice for everyone.39 Speeding up of police reforms in order to restore public trust in the political neutrality of the police therefore becomes an imperative.40 Among suggestions by the report comprise improvement of coordination of early warning and response mechanisms under UWIANO41; refinement of indicators for identification of violence hotspots; improvement of field monitoring presence in potential trouble-spots. It also urges the government to improve conflict mitigation measures and address challenges likely to threaten security around the elections.42

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The challenges facing the electoral environment have meant absence of a single and coherent theme for the next elections. There are many issues competing for attention. Absence of a single theme has the consequence of creating a divisive electoral environment. A strong and coherent electoral theme is required because the organizing theme determines the kind of leaders to be elected to move the country forward after the next general election. 43 The recommendations in this front include the development of a Code of Conduct for Election Observers that includes adequate facilitation for electoral observation; increasing technical engagement with election observer groups and other stakeholders to build stakeholder confidence in the electoral process and to strengthen public participation in the electoral process.44 37

Ibid. Ibid. p.7 39 Ibid.p.6 40 Ibid. P.7. 41 Platform for peaceful elections, pre- and post-referendum processes established between NCIC,UNDP and Peace Net Kenya 42 Ibid. p.7 43 Ibid, p.7. 44 Ibid. p.7. 38

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Election Management: Managing elections competently and inspiring public confidence in the electoral process The Report proceeds to set out the challenges and offers a raft of recommendations on what needs to be done.

Resolving Disputes: settling electoral disputes efficiently and effectively The Report also delves into dispute resolution mechanisms in place to handle preand post-election disputes. The review shows that the framework for putting this mechanism in place is incomplete. The review also shows that political parties appear to avoid the Political Parties Disputes Tribunal. They prefer the courts to the Tribunal. However, the Courts have begun referring back these cases to the Tribunal.

The Report observes that the Judiciary is undergoing transformation and is, therefore, in its nascent phase. It notes that it is swamped with many cases including those with consequences for election preparation as well as cases that should be settled out of the courts. This is happening at a time when the capacity of the Judiciary is also challenged and likely to be stretched further after the conclusion of vetting for judges and magistrates. Given the important role the Judiciary will play in addressing some of the disputes over the elections, it is important to consider appointing a special bench of judges to hear and determine election-related disputes from nomination to a year after the elections in order to accord the petitions the priority required by the law. Already the Judiciary has begun paying attention to election-related issues. Other actors in the chain have a responsibility to begin their preparations too. These recommendations have to date been largely implemented.

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1.3 Implementation Matrix on the Status of The Kriegler Report Recommendations This part of the Report tabulates the Commissionâ&#x20AC;&#x2122;s recommendations made as against the constitutional and statutory responses thereof. This is followed by responses to the questions asked of the key informant interviewees, their identification of gaps and challenges, and their recommendations. The Key issue of concern under this heading was to analyse the constitutional and legal framework and to identify weaknesses and inconsistencies in the electoral laws whereby recommendations on possible areas of amendments could be proposed. 1.3.1 Concerning the Constitutional and Legal Framework No. 1. 2.

RECOMMENDATION The right to citizenship should be included in the constitution The right to vote and to be elected at genuine periodic elections should be included in the Constitution.

Voting by universal and equal suffrage and by secret ballot should be guaranteed for all without discrimination.

STATUS OF RECOMMENDATION Article 12 of the constitution guarantees the right of citizenship.

Article 2(5) states that general principles and customs of international law shall form part of the national laws of Kenya. Article 2(6) states that treaties and conventions ratified by Kenya shall form part of the national laws of Kenya. Article 10 on national values and principles of governance. (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; (c) good governance, integrity, transparency and accountability; (d) Sustainable development.

Article 10 on national values and principles of governance. (b) human dignity, equity, social justice, inclusiveness, equality, human rights, nondiscrimination and protection of the marginalized

Article 38 of the constitution guarantees the right to free, fair and regular elections based on universal suffrage. GAP: The discrimination part may be guaranteed by article 27 equal enjoyment of fundamental rights and freedoms.

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Section 34(c) of the Constitution should be amended so as not to discriminate against persons with disabilities.

Article 21(3) of the constitution places an obligation on states and public officials to address the needs of persons with disabilities. Article 27(4) & (5) prohibits discrimination on grounds of disability by the state or persons. Article 54 of the constitution guarantees disabled persons the rights to be treated with dignity, access to educational facilities, and reasonable access to public areas, to use appropriate means of communication and 5% membership in elective or public bodies.

All laws relating to the operational management of elections should be consolidated under one statute.

Article 81(c) of the constitution states that the electoral system shall ensure fair representation of persons with disabilities. The Elections Act 2011 provides for the conduct of elections, referenda, election dispute resolution and other election purposes bringing all electoral laws under one statute

A separate law should be enacted to cater for electoral dispute resolution starting with the ECK. The law should, in addition:

Electoral dispute resolution is now dealt with under the Elections Act 2011, The Supreme Court Act (Part V) and Rules, Independent Electoral and Boundaries

Entrench a statutory limit to ensure that election petitions are finalized in good time. A limit of not more than six months should be adequate.

The Chief Justice has established an Electoral Dispute Resolution Court to hear and determine all pending election petitions

Establish an Electoral Dispute Resolution Court with the final jurisdiction to handle electoral disputes

Commission Act No. 9 2011 and the Constitution The High Court and Supreme Court of Kenya have jurisdiction to deal with electoral disputes

Development of the Supreme Court Rules which will include rules regulating election petition of the President have been gazette. The decision of the High Court on electoral disputes is not stated as being final and binding in the Elections Act 2011. The statutory limit for finalizing elections petitions under the Elections Act 2011 is limited to a maximum of 6 months.

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1.3.1.1 Challenges and gaps identified in the constitutional and legal framework The Constitution of Kenya, 2010 was to a large extent seen as effectively addressing the recommendations requiring inclusion of provisions guaranteeing the rights to citizenship, to vote and to be elected by universal suffrage without discrimination. The same applies to people with disability and minorities. However, even though the constitutional and statutory responses were laudable, interviews with Key informants revealed that there were gaps and challenges in the realization of these rights. Citizenship and universal suffrage

Although, Parliament had passed rules to guide the registration of voters in

the Diaspora, on December 3, 2012, the IEBC said that only Diaspora Kenyans living in the East African region will be registered as voters. IEBC further added that registration of all Kenyan voters in the Diaspora will be done progressively. The government cited logistical, financial and time constraints as the main reason for the setback.

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Concerns raised by some respondents were that neither the Constitution nor the statutory framework had contemplated the fact that electoral offences committed outside the jurisdiction of Kenya are not extraditable. For example, if one committed an election offence in a foreign country, he cannot be brought back to Kenya to stand trial, neither can he be tried in that country. Further, investigations and collection of evidence would be hampered on account of extra-territoriality.

There were delays by the IEBC in commencing voter registration which could have resulted in some voters being locked out due to the time pressures and other stringent requirements. The IEBC commenced voter registration on 18th November 2013 and concluded the exercise within thirty days. The matter of identity cards remained of concern, with many young people unable to obtain identity cards without which they were not allowed to register as voters and consequently, they will not vote. It remains to be analysed how time pressures may have hampered efforts in trying to facilitate all intending voters to exercise their rights. Though the IEBC aborted its efforts to have the diaspora participate in the elections, it would seem likely that many voters in the diaspora would still have been unable to participate in the process due to the short period of time they would have been required to comply with registration requirements. It has also been observed that voters in the Northern Corridor face the additional challenge of meeting stringent requirements in order to get identity cards, even as the state attempts to control the registration of illegal immigrants.

The Constitution gives the right to vote but the implications of availing such expansive rights, according to some respondents may not have been carefully thought out. For instance, in the Diaspora in a country like Iceland, there could be only two Kenyans with the right to vote and the electoral management body would have to set up there in order to enable them exercise their right. This translates into a financial cost not only for the voter to get to the polling centre but also for the electoral management body and the public. In such a case, it is arguable that the financial considerations may far outweigh the justification and this may prohibit some people from voting. The same applies to large countries like USA where as the IEBC had indicated, voting would have only been done in Kenyan embassies which are located very far away and only in New York and Washington hence voters from far the south would have found it too expensive to travel to the polling station. The cost of setting up polling stations in prisons for prisoners to vote (costs versus actual votes) may be unrealistic especially after the High Court ordered the Independent Electoral and Boundaries Commission (IEBC) to ensure prisoners who were registered before incarceration vote on March 4. Most respondents questioned whether the gains made by the Constitution would give the Kenyan taxpayer value for their money. Lack of Awareness/ignorance • Lack of awareness, notably, the rights, freedoms, protections and privileges enshrined in the constitution was identified as a challenge. The constitution has endeavored to create a greater space for participation, but there has been a lack of corresponding measures to make people aware of this. The populace

•

cannot take advantage of what they do not know about. For instance in as much as people basically understand the concept of dual citizenship and their right to vote, they do not know how it can be operational zed and awareness would be required for that. In comparing the situation in Ghana, where awareness campaigns on constitutional provisions is a right, it can be seen that there is room for improvement here in Kenya. Insufficient policies to implement the provisions of the new constitution were also found to be a problem. The practical implementation of the nondiscriminatory provisions has been left entirely to the state and the policy interventions have remained weak.

Rights of persons with disabilities • It was noted that in as much as the constitution grants disabled persons political rights including the rights to campaign for political parties, to be elected for office therein or to be a candidate within a political party, there are gaps on the question of enforcing these provisions. This is in terms of lack of adequate statutory provisions or even any rules to ensure that disabled people get into a party list. Furthermore, it was observed that discrimination against disabled persons continues as in looking at the key appointments made so far, they have been left out. However most respondents were satisfied that positive steps have been made by the constitution. •

In-spite-of the constitutional and statutory provisions guaranteeing persons with disabilities the right to vote, there has been little or no effort to practically realize this right. For instance, it was observed by those respondents who participated in the by-elections that the polling centers were not fitted with wheel chair access hence not user friendly in this regard. In some polling centers, it was noted that ballots are cast on the first, second or other upper floors and also an alphabetical system is used to determine where a person will vote. There were instances where disabled persons would find themselves forced to vote on upper floors, since the rule is that ballot boxes cannot be moved from where they are positioned. The disabled persons were thus directly denied the right to vote.

Elections legal framework • There have been numerous changes to the legal framework governing elections. This includes the consolidation of separate laws and the development of new statutes offering detailed provisions. It is contended that in as much as the law is not perfect, its weaknesses could not readily be ascertained and that they would have to be identified over time as the law was being implemented. Most of the respondents agreed that the laws enacted to govern elections would suffice to guarantee that the next election is free and fair, provided they were not tampered with, mutilated or watered down. However, there was little confidence in that aspiration. Respondents gave the example of recent moves by the legislature to amend the Political Parties Act regulating party hopping, such that the mischief sought to be cured is at the risk of being defeated.

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It has been contended that the lack of ideology informing Kenyan law and practice has contributed to the misguided assumption that the law is an end in itself. The reality is that the law is simply a guideline but it must be accompanied by sound interpretation and enforcement. It is hoped that in the future there will be a break from this practice, particularly relating to critical issues such as the electoral process.

There is also the issue of incomplete legal reforms where some laws are yet to be passed in Parliament, leaving some areas of the electoral process unregulated. For example the election campaign financing bill is yet to be passed and parties are already underway conducting their activities. The term of office ended without the bill being debated after receiving cabinet approval.

Electoral dispute resolution • The IEBC has been granted limited prosecutorial powers as well as the mandate to adjudicate over minor electoral disputes. While this is commendable, it was observed that IEBC officers may not necessarily have the capacity to prosecute election cases, for the reason that they are not legal practitioners. In fact, some of the respondents likened the situation to that of the Police Inspectors who are tasked with prosecuting cases, but who are challenged by the opposing side made up of qualified and experienced lawyers. •

There have been notable reforms in the judiciary in line with the Kriegler Commission recommendation to ensure that election petitions are heard in an expeditious manner. The Chief Justice, in recognizing the multiple and special roles played by the Judiciary in the elections has constituted an Electoral Dispute Resolution Court whereby election disputes will be heard and concluded in six months’ time. That experts are now being invited to engage with judicial officers on election matters in training forums and informal discussions was found by some respondents to be commendable. However, there are concerns that the capacity of the judiciary still needs to be built, particularly in terms of the number of judicial officers who can be availed to complete the task and their knowledge and expertise on election offences. Other concerns relate to lack of the judiciary’s appreciation of the political economy and social context upon which laws are made as the judiciary only seems to be aware of the legal context. Nevertheless, these issues are being addressed through policy interventions and it remains to be seen how prepared and effective the Judiciary will be this time around.

1.3.1.2 Recommendations • Election offences ought to be made extraditable. • There is a need to police party nominations to enforce political rights granted to all Kenyans and especially for the persons with disabilities. • Measures ought to be put in place to ensure that persons with disabilities can practically realize their right to vote.

• • • • • • •

Voter registration ought to be continuous and be as inclusive as possible to ensure that no Kenyan eligible to vote is denied the opportunity to exercise their rights. There ought to be civic education in order to create awareness among voters on the rights and freedoms provided by both the constitution and the various election laws. There ought to be enhanced policy interventions to eliminate discrimination in the electoral process. The letter and spirit of the law ought to be observed so that the election laws can be applied effectively. There should be massive awareness creation on issues of citizenship Constitution should provide for voter registration as a right (example given of the Constitution of Ghana) Judicial officers to be trained to appreciate the political, social and economic contexts affecting election disputes

Conclusion Even though almost all respondents were satisfied with the positive gains made by the constitution and related election laws, they were not confident that these noble provisions would withstand the onslaught by politicians considering their penchant for amending and repealing the law. The fear that Kenyans in the Diaspora may not participate in the general elections was proved right when the IEBC made a late decision to have them excluded except for those in East Africa. The question of whether the new-found rights were worth the cost to be borne by the tax payer also heavily weighed upon many respondents minds as unnecessary. The general consensus was that changes to the constitutional and legal framework would only have the intended effect if their provisions were respected by all persons. On whether these changes would be sustained, their response was that it was too early to be certain and that we need to give it more time. A wait and see attitude appeared most preferred.

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1.3.2 Structure and composition of the electoral management body The key issues of concern here was to: • Examine the organizational structure, composition and management system of the ECK; • Assess the functional efficiency of ECK in discharging its mandate as the key electoral body in the country; • Investigate vote counting and tallying at all levels by the return officers and poll clerks.

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NO. 1.

RECOMMENDATION Enacting a more detailed legal framework on the ECKâ&#x20AC;&#x2122;s institutional aspects.

The broad consultative process prior to the appointment of ordinary members and the chairman of the ECK be given legislative grounding.

STATUS OF RECOMMENDATION Article 88 and 89 of the Constitution The Independent Electoral and Boundaries Commission Act 2011 enacted to ensure effective management of the Commission for its connected purposes. Article 250 (2) constitution requires that appointment of members and chairman of the IEBC be approved by the national assembly and the president. The Chairman and commission members have been appointed constitutionally. Article 250(3) Constitution

The maximum number of commissioners be reduced to such a number as are functionally able to do the work.

The expiry of the terms of office of ECK members not coincide with election years. Ideally, a fully composed commission should be in office for two years prior to the conduct of general or presidential elections.

Article 250 (1) of the constitution states the minimum and maximum membership of commissions is 3 and 9 persons respectively. IEBC Act section 5(1) provides for a chairman and 8 commissioners who are currently in office. This is not addressed by the constitution or the IEBC Act but Commissioners were appointed in 2011 for a single term of 6 years meaning that their terms will expire on November 2016 hence will not coincide with next election year which is 2013 IEBC Commissioners have been in office since 2011

The ECK be made accountable to Parliament, without prejudice to its status as an independent body

Independent Commissions like the IEBC or its commissioners are required by Article 254 (1) of the constitution to submit annual reports. IEBC Act

A review of the ECKâ&#x20AC;&#x2122;s administrative procedures, with a view to introducing as much certainty and as little discretion as possible in key operational areas so as to ensure uniformity of performance throughout the electoral process, from polling station level up to the 50 various teams at the national tallying centre.

Review of their administrative procedures is already taking place focusing on transparency, information sharing and even performance at national, county and constituency levels.

These procedures should be codified, well-known to staff and form the basis of training.

The IEBC Code of Conduct (4th Schedule) guide all staff of the Commission in their performance and also Article 10(2) the Constitution on general values and patriotism Article 10 (2) and National Values and Principles of Governance The IEBC has embarked on an aggressive training program for its permanent officers. It also anticipates the same training needs for its proposed shortterm staff.

The ECK to review its overall training/briefing procedures in order to improve on their utility for adult learners. Training should, as a standard and not include simulations with the tools of work that the election staff are being prepared to use in the forthcoming elections.

Commissioners and senior staff should all receive basic training in election management, such as Building Resources in Democracy Governance and Elections (BRIDGE) or Basic Election Administration Training (BEAT), at the earliest possible opportunity after joining the ECK and also receive such refresher training as may be necessary in the course of their service to the ECK. In the recruitment of temporary election officers, commissioners should themselves vet only returning officer recruitment Commissioners should establish clear procedures for the recruitment of other staff and ensure these are strictly implemented.

The commission has embarked on a comprehensive training program for all cadres of staff and developed training materials with the help of Kenya Institute of Education in preparation for the next general elections. Commissioners apart from receiving basic training in election management have also conducted several study tours to various countries like South Africa and Mexico and other countries to learn first-hand how elections are conducted

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This is indeed the position as returning officers shall be vetted by the Commission and secretariat

The IEBC act establishes clear procedures for recruitment of IEBC staff.

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An urgent re-examination of the roles of commissioners vis-Ă vis those of staff, with a view to establishing a clearer commissionmanagement separation of roles.

The roles of the commission and secretariat are set out in the constitution and IEBC Act respectively.

Investment in staff training should be increased with a view to vesting in the Secretariat much of the institutional memory needed to conduct a genuine election.

Staff training on course and currently on going in a massive scale

Greater, if not all, implementation responsibility should be delegated to the Secretariat while greater, if not exclusive, policy-making responsibility should remain with the Commission. 10.

To ensure accountability, the establishment of clear lines of individual responsibility for service delivery among both commissioners and staff.

11.

The ECK operating structure be rationalised to reduce time devoted to Committees.

Commissioners now working on a full time basis providing policy direction. Secretariat implementing policies with less interference from outside forces Commissioners and staff are accountable to parliament and secretary respectively.

IEBC act allows for the formation of committees. Past committees have been abolished.

Some committees can be consolidated or even abolished altogether. Committee procedures should also be clarified, clear terms of reference should be drawn up for each committee and minutes should be kept for institutional memory.

Committee procedures provided for by the 2nd Schedule to the IEBC Act on conduct of business of the commission. Terms of Reference not addressed.

12.

The district offices be disbanded. The ECK should decentralize only down to the provincial level, since eight well-equipped provincial offices would be able to function both at election time and between elections. The provincial staff should include the right mix of skills, including information and communication technologies (ICT) literacy.

13.

The commission has decentralized election coordination at regional and constituency levels

Staff are to be competitively recruited by the well-equipped secretariat who ensure that they possess the requisite skills

The ECK revise its secretariat structure with a view to introducing performance management across the board.

Secretariat structure has been revised and performance is managed by reporting to the commission.

Staff should be on three-to-fiveyear contracts, renewable on the basis of performance.

Implemented

They should have clear job descriptions and the space to perform their roles on the basis of the responsibilities set out therein. Annual performance appraisals and performance-improvement measures should also be put in place. 14.

Constituency officers included in the hierarchy to be handled in a county level

The Commission Secretary, among other qualifications, be an experienced election manager, competitively recruited from the open job market and have the status of Permanent Secretary

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Job descriptions during recruitment were clear. Secretaries job description clearly described in IEBC Act. Staff have signed performance contracts The current IEBC Secretary is a carry-over from the defunct IIEC and is in office court of a court injunction. Secretary doesnâ&#x20AC;&#x2122;t have status of Permanent Secretary

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15.

That the issue of the ECKâ&#x20AC;&#x2122;s expenses being a charge on the Consolidated Fund be considered carefully in the constitutional review process.

Administrative expenses, salaries allowances gratuities of members of the IEBC are a Charge on the Consolidated fund. s (19) An Independent Electoral and Boundaries Commission Fund has been created to deal with operational expenses of commission.

16.

Enumeration of the ECKâ&#x20AC;&#x2122;s roles should include advising the government, Parliament and other stakeholders on electoral law reform and that these roles be taken seriously. A new or transformed ECK undertake a thorough management systems review as a matter of urgency to tailor the institution to implement critical decisions expeditiously and transparently.

Constitution requires IEBC to ensure compliance with electoral law

17.

The ECK has been abolished and thereafter formed an IEBC which now implements critical decisions expeditiously and urgently.

1.3.2.1 Challenges and gaps identified in the structure and composition of the electoral management body The strengthening of the capacity, functioning and independence of the electoral management body has been lauded as a strong step in ensuring proper performance of its duties and responsibilities. The IEBC commands some confidence in its capacity to conduct free and fair elections especially considering the success in handling by-elections and the referendum. However, there are still concerns that unless integrity is a core competency in each and every official, there is still a margin of error that can compromise the primary objective of free and fair elections. The delimitation of boundaries some respondents felt had split some tribes and also affected minorities in such manner that may discourage people from voting and also fuel ethnic tensions, while on the other hand some respondent hailed it as curing past challenges. The following challenges were identified. â&#x20AC;˘

In as much as the credibility and functionality of the IEBC has been bolstered by transparent and competitive recruitment as well as the hiring of permanent staff that are dedicated to the organizational objectives, there is still a challenge in achieving independence. Some respondents questioned how the recruitment process ensured that nonpartisan staff was recruited. Was there a proper vetting process?

•

Some Respondents alluded to internal wrangles particularly between the top officials of the organization as an indication of lack of cohesiveness within the institution.

Political patronage was perceived to be a major threat to the independence of the Commission. It was generally alleged that the commission has been politicized. That some commissioners were allied to ODM and PNU parties and likely to be partisan. While these may be just allusions pointing towards conflicting interests, issues such as this tend to undermine confidence in the body. Having said that, the electoral laws are quite clear on how conflict of interest and election offences committed by IEBC officials ought to be handled, and for the most part it is agreed that they are highly deterrent. Constant and consistent wrangles between the commissioners themselves and also between the CEO and the Chairperson was creating an image of lack of cohesion in the commission thus threatening their capacity to hold their center together especially during difficult times. Some respondents also felt that the secretariat staff was also tainted with political patronage

Some respondents felt that given the magnitude and scope of the forthcoming and future elections, the IEBC could benefit from more Commissioners. A section of Respondents argued that an additional number of Commissioners was required in order to ensure effective discharge of the electoral body’s mandate.

Insufficient budgetary allocation was cited as hampering the improvement of capacity for the commission to undertake its duties effectively. The budget cut by Parliament was cited and the fiasco relating to the cancellation of BVR (Biometric Voter Registration kit) tender.

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1.3.2.2 Recommendations • Need for further review of electoral boundaries to accommodate minority and tribal interests • The public ought to be sensitized on the role played by all the stakeholders in the electoral process and especially, their own part in ensuring that election outcomes are free, fair and objective. • A conflict of interest policy should be put in place and be signed by all IEBC officials • A code of conduct should be developed and strictly enforced. • All positions must be advertised and competitively filled through professional firms and not the secretariat to avoid infiltration by politicians • Improve funding especially for the conduct of the next general election

1.3.2.3 Conclusion The issue of perceived or actual disagreement between the commissioners could also be attributed to not compromising the integrity of the institution but also as an expansion of democratic space where commissioners and other staff of

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the commission can express freely their views and contribute to the day to day running of the institution and thus normal. This is one way of reducing impunity of the past wherein some persons dictated to institutions and ran them with a heavy and controlling hand. It was largely agreed that in as much as the electoral management body ought to operate in a transparent manner, True impact will be felt in the elections’ outcome where the attitude of the public and the politicians also change. It was observed by some Respondents that election malpractices occur as a result of political machinations, which are condoned and furthered by members of the public. Thus, it was argued that efficiency in the electoral process can only be achieved where attitude change among the voting public and the politicians complement changes to the electoral management body. 1.3.3 The electoral environment and the role of political parties, civil societies, the media and observers The key area of concern under this heading was focused towards ensuring adequate public participation. This report thus: • Examines public participation in the 2007 electoral processes; • Investigates the organization and conduct of the 2007 electoral operations including civic and voter education among others. 1.3.3.1 Concerning Nominations No. 1.

RECOMMENDATION A standing liaison committee be set up comprising the ECK and political parties as a first step towards the enactment of nomination rules which must be strictly adhered to.

STATUS Article 38 of Political Parties Act 2011 sets up a Political Party’s Liaison Committee to provide a platform for dialogue between the Registrar of Political Parties, the IEBC and political parties.

Once Parliament has been dissolved, no more political parties should be registered and no new symbols allocated.

Campaign period be specifically defined to assist the ECK in ensuring compliance with the Electoral Code of Conduct.

This has been observed. No political parties and symbols have ben registered since parliament dissolved in January 2013. Political coalitions have however been registered. No legal guidelines are available. The Elections (General) Regulations 2012 S. 57: (Provisions relating to the campaign period.) Every political party to submit to the Commission at least 14 days to the election names of its National Chief Agent and 47 County Chief Agents.

The election date should be preset, taking into account all the required timelines for efficient conduct of the elections.

IEBC following the decision of the High Court and the Court of Appeal set the date of the election to 4th March 2013.

ECK should enforce the provisions of section 17 of the National Assembly and Presidential Elections Act and the Local Governments Act (Cap. 265), which empower it to deny political parties’ nominations made contrary to their own constitutions or nomination rules.

Section 72 of the Elections Act 2011 allows the IEBC to deny nominations contrary to their constitutions. This was not strictly observed during nominations. The IEBC was largely seen as bending backwards to accommodate politicians machinations around nominations.

1.3.3.2 Challenges • Capacity building for the Political Parties Liaison Committee is lacking since it has only been established at national level. It is absent in county level. Also noted is that political parties’ big wigs do not take this committee seriously and only send junior party officials to attend its meetings thus creating weak liaison • The enforcement of the Political Parties Act has been neglected since the Registrar of Political Parties who has never been properly appointed under the new dispensation is exploiting the ambiguities in the Act to avoid holding political parties to account. • The office of the Registrar of Political Parties is still vacant. Most Respondents were of the view the current Acting Registrar of Political Parties is weak, ineffective and behaves as a disinterested public officer. • IEBC was found not to be sufficiently policing political parties and politicians who violate the law. Some Respondents were of the view that they should file suits against violation of the Political Parties Act like the Commission on Implementation of the Constitution has done with regard to the adulteration of the Leadership and Integrity Law by cabinet and parliament. 1.3.3.3 Recommendations • Improve capacity of the Political Parties Liaison Committee (PPLC) and establish it to the county level • Need to sensitize political parties to understand their role and the role of the PPLC • Recruit the substantive independent Registrar of Political Parties envisaged under the Constitution and the Political Parties Act 1.3.3.4 Conclusion That the Registrar of Political Parties had not been appointed was a clear indication of lack of political will on the part of the government and political parties. This created a general suspicion that the political class was not willing to and were not very comfortable with the implementation of the Political Parties Act.

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1.3.4 Concerning the Media No. RECOMMENDATIONS 1.

The MCK should oversee the conduct of media and enforce its Code of Conduct.

A media and elections policy should be developed, to include guidelines for verifying data before going on air, vetting of live broadcasts and screening of paid-for advertisements, responsibility to announce accurate results and training of journalists on the Electoral Code of Conduct, and elections reporting and the manner of reporting on opinion polls

STATUS

Media Act 2007 empowers the MCK to oversee the conduct of the media. Its decisions are enforced as if they were decisions of the court. Electoral code of conduct Article 14 requires the media to abide by the Elections Act and any other media regulations on elections. S. 42 of Elections Act 2011 gives the IEBC powers to accredit those reporting on the elections. S.95 of The Elections (General) Regulations 2012 gives IEBC powers to accredit media houses reporting on elections and powers to issue guidelines to media houses upon accreditation. Media Council of Kenya (MCK) worked with various stakeholders and the IEBC to issue guidelines on media coverage of the elections in April 2012. - MCK guidelines cover both private and state owned organizations. - They state that there should be balanced and impartial coverage for all candidates and political parties. - Media should establish in-house structures and mechanisms of overcoming internal conflict that could negatively influence or compromise election coverage. - They should ensure the following values of journalism are observed: accuracy, impartiality, sourcing, sensitivity in news coverage, integrity and right of reply. - Journalists to ensure that he or she is familiar with electoral legislation and regulations, and new voting procedures. - Hate speech is prohibited. - The media must, according to the World Association for Public Opinion Research (WAPOR), understand the â&#x20AC;&#x153;appropriate forms of publishing poll resultsâ&#x20AC;?. Journalists and media houses should thoroughly interrogate each and every opinion survey results. Media houses to ensure that they set up a complaints team to handle any arising complaints. Internal mechanisms for monitoring their individual performance. MCK is in-charge of monitoring media houses observance of the guidelines and will publish monthly reports on the same. S. 16 of the guidelines indicates that media houses should distinguish between editorials and advertisements. Advertising content is the sole responsibility of the party-so long as the journalistic standards are maintained. Elections Act allows IEBC to issue directives to media. Elections Act can prohibit a media house from transmitting on elections if it contravenes electoral laws.

Disclosure of the real owners of media be made on a regular basis.

This has not been done

KBC Act be amended to provide the ECK with the commensurate power to compel KBC to act in accordance with the law.

Elections Act gives IEBC power to provide for the allocation, in a just and equitable manner of the use of state owned radio and television broadcasting services during elections.

Mechanisms to be set up to ensure the independence and public accountability of KBC.

Section 41 of Elections Act requires state owned media to be impartial. S. 41(4) of the Elections act 2011 states that every media house shall subscribe to the code of conduct prescribed by the Media Act. MCK guidelines for elections coverage are in place.

Access to KBC by the Presidential Press Service be reviewed, particularly in an election year. Key provisions in the KBC Act pertaining to free access slots for party political broadcasts be clarified and precisely defined as to the rights of the parties and candidates in law. A substantive Act prohibiting hate speech be drafted and enacted

Yet to be reviewed

Section 41 of the Elections Act provides that each political party may have access to KBC. S. 108 of the Elections Act indicates that each candidate/party to be allocated reasonable airtime on state owned media.

The National Cohesion and Integrity Act 2009 has been enacted to prohibit hate speech and the National Cohesion and Integration Commission (NCIC) established to promote and monitor compliance.

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1.3.5 Concerning Civil Society Organizations (CSOs) and Elections Observers (EOs) and Faith Based Organizations (FBOs) No. 1.

RECOMMENDATIONS The ECK and CSOs be encouraged to work together, particularly in voter education in an arrangement whereby the ECK coordinates and CSOs provide delivery.

STATUS IEBC advertised in April 2012 that all organizations seeking to provide voter education apply to IEBC for accreditation. IEBC is conducting county voter education forums across the country.

ECKâ&#x20AC;&#x2122;s selection of ECK trainers and facilitators should be done through a transparent process and the criteria for a neutrality test determined in advance and published.

This already operational as ECK trainers and facilitators are being selected in consultation with other stake holders through a competitive process by an equally competitive IEBC secretariat

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Bodies (including FBOs) with contractual or financial relationships with either the ECK or political parties, or which are established to have acted in a partisan manner in an immediately preceding election, should be excluded from domestic observation.

IEBC is liaising with FBOs by disseminating information and material through them. Issue of exclusion or blacklisting is not yet been attended.

A permanent domestic observer group should be constituted comprising diverse civil society interests.

There is one that has been formed â&#x20AC;&#x201C; Elections Observations Group (ELOG) that is comprised of a variety of civil society and faith-based organizations. It has however not been able to carry out observation on a permanent basis owing to limited resources.

Co-operation and co-ordination of observer groups, local, regional and international, be encouraged.

Elections Act provides for co-operation between IEBC, Registrar of Political Parties and Political Parties. No structure has been established for the various observation groups to coordinate and work together.

Regulations be amended to provide for observation of the tallying process at all levels and provide copies of all authentic statutory forms to observers.

Section 42 of the Elections Act allows IEBC to accredit observer groups.

1.3.4.1 Challenges and gaps identified in public participation in the electoral process and the electoral environment: the role of political parties, civil societies, the media and observers The management of the electoral process involves various stakeholders and not just the electoral management body. Thus, it is the responsibility of all the institutions and persons involved to ensure that the electoral environment is one that inspires confidence in free and fair election outcomes. To this end, the Kriegler Commission recommended that all parties involved ought to streamline their activities such that the administration, management and regulation of electoral process is credible and legitimate. However, there have been challenges in the practical implementation of such participation. The role of political parties • While the Office of the Registrar of Political Parties has been seen to be involved in the regulation of political party compliance with election laws, it is argued that more can be done. It was the view of almost all Respondents that the Office has not come out strongly to enforce legal provisions on various issues such as political party nominations, delineation of official campaign periods and even denying parties the opportunity to nominate candidates to elective politics where constitutional and legal violations are made. The example of on-going political party campaigns long before the campaign period was given not only to demonstrate that there is weak regulation over political party activities but that the consequences of such non-regulation is that the electoral environment is not conducive to free and fair election outcomes. The indiscriminate and unchecked party-hopping that has recently been witnessed was also identified as one of the failures of political parties. In the nominations in January 2013, candidates who lost in the nominations in one party were still able to obtain nomination certificates from other parties with the connivance of the IEBC and the Registrar of Political Parties. •

•

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It was also observed that lack of awareness of the role of political parties has kept many Kenyans from participating in their activities. Respondents noted that while political parties were public vehicles allowing people to engage in the political process, the public was largely unaware of this fact. In fact, it was noted that most members of the public leave political party affairs to the officials and other ‘politically-driven’ persons, not knowing that these parties are funded by the taxpayer. Therefore, it is their right to participate and effectively manage political party activities. Thus, it was contended that the primary objective of establishing political parties, and particularly in a multiparty democracy such as Kenya, is not being achieved.

In response to the question as to what further measures, in the view of the Respondents, could be taken to ensure political party compliance, it was contended that the number ought to be regulated. There were Respondents who were of the view that the political parties in the country were numerous and that this was creating confusion and unhealthy competitive politics. Further, that in as much as parties have manifestos and policies, the Kenyan public was not aware what each party stood for as they are not compelled to

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•

keep communicating these plans when addressing the public. It was argued that it would be better if political parties were fewer and were mandated to address the public on these issues. There were also concerns raised as to the penalties imposed on political party malpractices. Respondents noted that political parties through the politicians still have leeway to engage in unfair, underhand and even insidious conduct without being definitively locked out of competitive elective politics. The examples of politicians bearing responsibility for crimes but still holding political office, inciting people to divisiveness and dis-respect for the rule of law and only paying fines for it as well as other forms of misconduct were highlighted.

The role of civil societies and Faith Based Organisations • The effectiveness of civil societies is a matter of debate with some Respondents arguing that they are highly useful in disseminating voter education and ensuring electoral transparency while others believed that while they appeared to be championing these causes, they were in fact partisan. The latter group of Respondents argued that civil societies advanced the agendas of their sponsors and thus could not be relied on to be completely objective. • Regarding FBOs the supply side argued that they affectively network with and coordinate but the Respondents interviewed on the demand side who are not part of the decision making organs did not seem to feel the presence of IEBC in their congregations. If the IEBC was connecting to the decision makers then it was not filtering down to the grass root. They attributed any failure to work together to FBOs’ reservations on some contentious issues in the constitution. However the FBOs seem to have taken over the task of education of voters and public participation in their stride by creating forums to advance the same. Such initiatives included prohibiting politicians from using their congregations as a platform for campaigns, development of governance and advocacy ministries for educating members, public lectures, training of pastors as trainers, preaching messages of peace, development of outreach programmes etc. Failure to reach the Faith Based Organizations was identified as a challenge that IEBC had not properly handled.. The role of the media • The regulatory framework for media was described as very weak and not being sufficiently enforced. It was conceded that though Media Owners Association has self-regulating framework it is not regulating itself as there are no members in it outside the owners for example there is no public participation hence the values of public governance is absent. • In radio and television programs it was largely felt that there is no clear benchmarks for public participation in call ins and this is susceptible to manipulation since one can recruit respondents to inundate call ins with biased messages and distort debates or even results and perceptions. • The media is seen as concentrating on side shows and ignoring the key critical issues on elections thus distorting the views of Kenyans

• •

Lack of training of media staff on election reporting and voter education was observed Irresponsible reporting by media was noted, including lack of content, depth and objectivity

The media was identified to be the most trusted source of information. Opinion about the role of the media was however split evenly down the middle. There were Respondents who believed that the media is the public watchdog, and that were it not for them, the public would be kept in the dark about crucial issues. Examples were given of the Mombasa Republican Council (MRC) activities, behaviour of politicians where the public can see their politicians behaviour and decide whether to vote for them or not. Some TV stations were singled out as good in voter education in their programmes. These group of respondents believed that the media was the only true tool of transparency. Conversely, there were Respondents who were of the view that the media can never be truly objective for the simple reason that they are owned by business people who are sometimes the politicians themselves. Thus, they would be engaged in promoting the cause of their preferred candidate. These Respondents added that this contention stands in spite of existing rules, regulations and guidelines that prescribe informed, fair and balanced coverage of election activities. Therefore, it emerges clearly that although it is not in contention that the media plays a key role in informing the public, there is no consensus on whether their input is positive or negative, just that it is impactful and that it needs to be properly managed. Therefore, there still remains a challenge in ingraining impartiality and independence in media coverage of election issues.

The role of observers • While domestic, regional and international observers are all included in the electoral process in order to validate its legitimacy and to evaluate whether it was credible, free and fair, it has been contended that this may not always be the case. Respondents pointed out that in the last election, observers were seen not to adhere to professional standards and to forget their role as neutral parties and instead take up activism. It was also noted that some observers were not properly trained and thus were not competent in the conduct of their duties. Thus, in future elections, the concern raised is in how observers can be confined to their stated duties in order to ensure that they conduct themselves accordingly.

Recommendations • The Office of the Registrar of Political Parties ought to come out more strongly in regulating the activities of these parties to ensure compliance with electoral laws, conduct and fair practice. • There ought to be public education campaigns to create awareness about the role of political parties and how the public can be more involved in the political process. • The right to freedom of association, assembly and expression ought to be balanced against the people’s right to know. Thus, political parties ought to some extent to be compelled to focus on communicating their agendas and manifestos for the edification of the voting public.

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• • • •

• • • • • • • •

There should be emphasis on enforcing political party compliance with fair conduct and practice. The criteria for establishing the neutrality of civil societies ought to be made clear, so that it is easier to assess their role as against these standards. In relation to the role of the media, they ought to be sensitized on the gravity of their roles and responsibilities. Further, they ought to be educated on responsible reporting. In as much as the media is a self-regulating body, the rules and regulations developed to govern their conduct, particularly during elections ought to be subject to the input of other stakeholders, so that the most effective approach to transparency is adopted. A policy on public participation in matters media needs to be put in place to guide the media and FBOs. A legal framework for public participation should be put in place. A law distinguishing media ownership and political engagement should be enacted Observers should be adequately trained in their duties and particularly the ethos of neutrality so as to achieve their defined purpose in the electoral process. More financial support to be given to local radio and TV stations to provide time to educate voters since IEBC has not done enough by way of civic and voter education for the 2013 elections. KBC to be financially supported to have better grassroot support since its coverage demonstrated a marked failure to fulfil even its minimal obligations as a public service broadcaster IEBC to distribute manuals and training materials to FBO’s to use for voter education IEBC should reach out to umbrella bodies of FBOs like the NCCK and SUPKEM.

1.3.5 Electoral preparations Concerning constituency delimitation No. RECOMMENDATION 1.

The basic principle for the delimitation of constituencies should be the equality of the vote, and the maximum departure from that principle should be clearly defined in the law. Criteria such as density of population, population trends, means of communication, geographical features and community of interest should be retained, but they should interfere minimally with the basic principle of equality of voting strength.

STATUS

Article 89 of the constitution provides that the boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota. The constitution provides for such criteria to be taken into account. The Interim Independent Boundaries Review Commission developed and used such criteria in de-limiting boundaries. This was validated by the successor IEBC.

Process of delimitation be made accessible to the public through a consultation process and enough time provide for it to discuss and challenge ECK decisions.

The process should be as transparent as possible.

Article 89 of the constitution requires the IEBC to consult with all interested persons. An aggrieved party can apply within 30 days, to the High Court to review IEBCâ&#x20AC;&#x2122;s delimitation decision. The high court to make a decision within 30 days of application. IEBC to avail delimitation report to public within 21 days of publishing of report. The IEBC has issued preliminary reports of its process of delimitation in the daily newspapers and its website. IEBC has issued guidelines on facilitating public representations to the IEBC on its preliminary reports. Its methodology and delimitation have been upheld by the courts following recent legal challenges to the process.

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Boundary delimitation was highly emotive, however due to disagreement, delimitation had to go on.

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Establishment of an independent commission – the Boundary Review Commission (BRC) – with responsibility for establishing, reviewing and drawing new constituency boundaries. Persons appointed should have qualifications necessary for delimitation and term of employment ends upon delimitation. The establishment of constituency boundaries should be separated from the administration and management of elections. Parliament should not have the power to override BRC decisions.

The Constitution of Kenya (Amendment) Act 2009 established the IIBRC to perform a first review of boundaries.

Commission was dissolved by the Constitution of Kenya, 2010. Constitution of Kenya (Amendment) Act, 2008 didn’t require delimitation qualifications. IEBC is in charge of both delimitation and electoral management. IIBRC was mandated to make recommendations to parliament on delimitation. IEBC is independent and is obliged only to consider the view of Parliament. Parliament doesn’t have power to override its decisions. One to apply to High Court if aggrieved by IEBC decision.

The first delimitation exercise to take place as soon as possible and should follow the population census. The delimitation process should be completed at least eighteen months before a general election.

First delimitation took place in 2009 and was completed in November 2010. Article 89 of Constitution requires delimitation to be completed 12 months before next general elections. Delimitation has been completed.

1.3.6 Concerning registration of voters No.

RECOMMENDATION

Entitlement to vote be based on residency, unless there are strong arguments for maintaining some of the other categories presently included. Voters be allowed to vote with the simple presentation of the national ID or passport if their name is in the voter register.

The issuance of the national ID card to be integrated with the registration of voters.

STATUS

National IDs are issued by the Ministry of State for Immigration and Registration of Persons. Registration of voters is done by IEBC. Entitlement to vote is based on citizenship. Voters can only vote on presentation of their identity document and electors card. The Biometric Voter Registration System used aides in retrieving biometric data.

1.3.7 Concerning Nomination of candidates No. 1.

RECOMMENDATION A special election court to be established to expeditiously receive and deal with disputes arising from party primaries and its decisions be final.

Parties to have exhausted their internal dispute resolution mechanisms.

ECK establish a clear, non-adjustable, timeframe within which all parties should hold their primaries and certify their nominees. Include, as a positive incentive for good behavior, a requirement that candidates will not be gazetted while an election dispute is pending.

STATUS Nominations disputes are determined by the IEBC and the High Court. The Chief Justice has formed a five bench judge to deal with all pending election petitions whose decision is final Political Parties Tribunal is established to deal with party disputes. Its decision is not final, but subject to the high court, then court of appeal and supreme court. Political parties act requires parties to exhaust their internal dispute resolution mechanisms. Section 13 of Elections Act requires political parties to nominate their candidates at least 45 days before the general elections. This deadline was elastic and the IEBC moved it several times to within less than 45 days stipulated in the law. No candidates have been gazetted while a dispute persists.

Amendments to the electoral law to require political parties to not only conduct elections in accordance with their constitutions or rules but to also conform to established standards of fair practice.

Political Parties Act addresses these issues.

The Registrar of Political Parties should, in consultation with political parties, adopt a standard that is then enforced when the constitution and rules are submitted for the partyâ&#x20AC;&#x2122;s registration.

The political parties provide for criteria to be observed with regard to constitution and rules.

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Political Parties Code of Conduct has been enacted.

Registrar empowered to monitor political parties to ensure compliance with their rules.

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1.3.8 Concerning electoral preparation No.

RECOMMENDATION

The job descriptions of all relevant temporary positions be reviewed and updated to take account of additional skills essential to the competent management of a modern, IT-facilitated electoral process. The training of returning officers be enhanced to match the importance of their function in the electoral process, and also that consideration be given to their earlier selection and recruitment. Personnel at every level be involved in the training of personnel one level below, to permit greater familiarity with the chain of work. Outsourcing the selection of key temporary personnel to third party agencies, with a requirement for testing some essential skills (e.g. IT) and a penalty clause in the event that any poor performance by selected personnel is discovered to have been caused by employees not having the stipulated qualifications. Longer lead time for the exercise is necessary so as to allow time to evaluate and if necessary replace recruits.

Actual participation in electoral activities be made conditional on verified participation in all prescribed training events.

The review of all training and operational manuals to ensure that they actually conform to the latest operational procedures in force.

STATUS

IEBC has recruited staff taking into account additional skills required.

This has been done..

This is currently being implemented

This has been done especially to increase capacity for example in the Boundaries delimitation and review where it was felt that extra technical advice and expertise was lacking The timelines in the preparation for the elections in 2013 have been greatly compromised. Voter registration took thirty days and public verification of registration took fifteen days. Parliament changed the law on timelines to make it impossible for quality dispute resolution on the nomination process. IEBC revised the deadline for submission of nomination certificates by candidates several times. Currently training on going

Currently review ongoing in preparation for next elections

1.3.9 Concerning voter information and education No. 1.

RECOMMENDATION Long-term investments education/information campaigns.

voter/civic

STATUS IEBC Act education.

provides

for

voter

Voter Education Curriculum and Modules have been drafted.

Voter education not to occur only during an election period or year, but on a consistent basis every year as in some other countries.

Structured voter education has not been properly done and has been left too late, within thirty days to the elections. Civic education has also suffered similar fate. This is ongoing but a low scale and not properly coordinated to ensure national coverage.

CSOs should be encouraged and must be able to conduct voter registration outreach in addition to voter education. Voter/civic education/information campaigns pay attention to local elections too.

County voter education forums are been conducted by IEBC.

Involving young people, particularly students, to help interest younger voters, and strengthen bonds between older and younger elements of communities.

IEBC and some FBOs have established programs where University Students are visiting most areas especially remote violent prone areas to educate fellow youth and elders

Design of voter education material should factor in the varying needs and interests of target groups.

IEBC has conducted a poster competition for well designed voter education material factoring various needs and interests of target groups.

Introducing simplified teaching of the key principles and values relating to the right to vote in schools from the elementary stage.

IEBC has partnered with Kenya Institute of Education (KIE) to develop tools for simplified teaching on right to vote.

Creation of programs such as “Vijana Tugutuke”, which was focused on youth – they need to cover a large area and this should not only be in urbanareas.

FBOs The Anglican Church and CITAM Karen have developed outreach programs covering remote areas like Mount Elgon and IDP camps conducted by university students. Many initiatives encouraging people to vote and do so peacefully have been rolled out by the IEBC, the religious secto, civil society organizations and the private sector.

Public forums such as round tables, candidate debates and town-hall meetings at which specific local issues can be raised for discussion (e.g. the problems of people with disabilities and the local community).

County voter education forums are been conducted by IEBC.

Voter education to teach the Electoral Code of Conduct and highlight the deleterious effect of fraudulent practices in elections.

Voter Education Curriculum, Voter Education Training Manual and Modules have been drafted.

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10. 11.

12.

13.

Linking voting to community issues. Selected organizations be vetted well in advance in order to have candidates for conducting voter/civic education/information campaigns. Monitoring and evaluation be put in place to ensure that CSOs responsible for voter/civic education/information campaigns carry out the programmes properly and in accordance with ECK guidelines.

FBOs doing this IEBC accrediting voter educators.

Particular attention be devoted to demonstrating how free and fair elections can change Kenyansâ&#x20AC;&#x2122; opportunities and help to resolve difficult problems.

Voter Education Curriculum and Modules have been developed and adopted..

IEBC requires organizations seeking to engage in voter education to apply for accreditation from IEBC in accordance with IEBC guidelines.

1.3.10 Concerning regulation of political campaigns No. 1.

RECOMMENDATION ECK immediately promulgate regulations for the Political Parties Act, not only so as to provide a clearer legal framework for the registration of political parties but also so as to achieve the political finance objectives of the Act. Such regulations should have sufficient technical detail to illuminate the ECKâ&#x20AC;&#x2122;s powers of oversight, detection (or investigation) and enforcement (or prosecution and sentence) to ensure compliance with the Act. Should it appear, in the course of drafting regulations, that matters have been omitted that form a statutory bar to the sufficiency of the regulations, the ECK should expeditiously make use of its advisory powers to bring these to the attention of the Kenya Law Reform Commission or Parliament (through a relevant Committee) so that the Act can be amended.

STATUS The Political Parties Act 2011 has been enacted for this purpose. Political parties registration regulations 2008. Political parties regulations 2009.

funding

Election Campaign Financing Bill has been drafted and received cabinet approval but was no enacted before parliament dissolved. Registrar of Political Parties to ensure compliance. IEBC is mandated to regulate how much is spent by a party/ candidate during elections. IEBC has established a legal unit to address this issue

Electoral law reform to give power to the ECK to enforce its orders. The ECK should not have to go to the High Court for the sanctions but should be able to apply them itself, subject only to the High Court’s power of judicial review. The plethora of provisions against the involvement of public servants in politics be consolidated into one provision. The electoral law should not only bar the participation of public servants in political activity, including elections, but also barring (in unambiguous terms) the use of any public financial and material resources.

Elections Act gives IEBC powers to enforce its orders and issue sanctions pending hearing of dispute.

Article 77 of the Constitution restricts state officers from holding offices in political parties. Section 43 of Elections Act prohibits involvement of public officers in elections. Section 12 of Political Parties Act provides certain restrictions for public officers in political parties. The Elections Act and the Political Parties Act bar the use of public financial and material resources during elections.

The ECK put in place, at every election, adequate monitoring mechanisms to collect information on public servants involved in partisan political activity for use in prosecution and other penalties sanctioned by law.

A reintroduction of realistic and Functional expenditure caps on election expenditure generally or specific election expenditure items.

Attorney-General appoint public prosecutors for the ECK for the purposes of prosecuting election offenders.

Attorney-General’s prosecutorial powers can be dispersed by Acts of Parliament to lead institutions, such as the ECK, to deal with matters under their remit. Electoral law be amended to provide the ECK with prosecutorial powers over all election offences. ECK to expand its legal department to include public prosecutors for this purpose.

IEBC has established a department to monitor this activity and also works in partnership with the National Reconciliation and Monitoring unit and State Law Office Campaign Finance bill has been drafted but not enacted into law. IEBC has not issued guidelines on this IEBC has DPP’s powers of prosecution under Article 157(2) of constitution.

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Elections Act section 107 grants the commission powers of prosecution and arrest. IEBC has recruited prosecutors.

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1.3.11 Concerning regulation of freedom of expression and equitable access to media No. 1. 2.

STATUS

The constitutional guarantee of the right be enhanced by a provision restricting hate speech. Media, especially State-owned media such as KBC, should strive to offer balanced coverage to all the players in an election as is required by KBCâ&#x20AC;&#x2122;s establishing statute and enhanced by the IPPG agreement.

RECOMMENDATION

Article 33 of constitution prohibits hate speech. The Constitution and Elections Act require impartiality and balanced coverage for all players in state owned media. S. 108 of the Elections Act indicates that each candidate/ party to be allocated reasonable airtime on state owned media.

ECK should ensure that the media receives correct and timely information so as to mitigate the possibility of misinformation such as was witnessed in the 2007 election period.

IEBC will now remit results through a secure network at specific intervals during the day so as to avoid congestion and lack of adequate information to the media and IEBC secretariat simultaneously. Electronic results, to be relayed at constituency, county and national levels, will still be compared to the hard copy documents to verify that the election results remain unaltered. This will be done through an API System to be used by various media stations and other websites to receive the results in real time, saying these would enhance transparency and that remove time windows for the alteration of result. The information will go through the network service providers (Safaricom and Airtel) but would be encrypted and secure from outside interference,

Media houses ensure that they recruit professional reporters and editors and, in case of talk-shows and call-in programs, avoid using staff who are ignorant of conflict reporting or moderation.

Media guidelines for elections and code of conduct have been issued by MCK-the guidelines ensure that journalists are trained on election reporting. Most media houses are training their staff on elections reporting.

Media houses ensure that they liaise with the ECK before publishing results so as to ensure the reliability and correctness of the information they pass on to their readership/audience.

Media code of conduct requires reliability and accuracy of information transmitted.

ECK or its successor, in consultation with suitably qualified advisors, as a matter of urgency devise and implement a sound media relations policy and strategy in order to establish and maintain a proper relationship with the media.

IEBC has established a media department and also a media co-ordination unit and also involved itself in training media staff

1.3.12 Concerning technical assistance received by the ECK No. 1.

RECOMMENDATION The assistance provided be thoroughly evaluated and the lessons learned applied in the future.

Assistance to be provided be carefully coordinated and defined well in advance of the electoral process.

STATUS Post election audit carried out. This has been done for referendum and also by elections Secretariat in place and which coordinates all the work relating to elections.

1.3.13 Concerning management of polling day operations No. 1.

RECOMMENDATION ECK take steps to eliminate bribery, including stronger sanctions â&#x20AC;&#x201C; such as disqualification â&#x20AC;&#x201C;for candidates involved in the practice. Practice of allowing assistance on the basis of illiteracy should be discontinued and voter education programmes adjusted accordingly.

Use of black books be discontinued and that the ECK consider the use of tendered ballots in the case of persons who cannot find their names in the votersâ&#x20AC;&#x2122; lists.

STATUS Elections Act provides for election offences and their penalties include disqualification of candidates involved.

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IEBC position on assisted voting is that this practice requires to continue save with assistance of candidate agents considering high illiteracy rates and people with disabilities that may warrant assistance. There is plans to use electronic voting but black books will still be retained as an alternative plans should the electronic system fail

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Party agentsâ&#x20AC;&#x2122; access to polling stations and tallying centres be assured, and the only restrictions be limited to space available. Agents should be adequately identified and, in the case of tallying centres, provided with special tags.

All three ballots be handed to the voter at the same time: this should be stressed both in training and in voter education. Every effort be made to ensure polling stations are accessible to all voters, especially people with disabilities and the elderly. A checklist for electoral officials surveying polling stations should be developed to help them assess whether the polling stations are accessible to all categories of voters â&#x20AC;&#x201C; doorways too narrow, ramps too steep or door handles too difficult to manipulate.

Pending implementation but already applied in by elections

Applied in by elections pending full implementation in general elections Training ongoing

Provided for under the constitution. Approximately 250,000 polling stations have been selected but the concern regarding their access by people living with disability has not been considered owing to the fact that we are still using the usual schools.

If possible, at each polling centre a committee including representatives of voters with disabilities should be formed to contribute to the design of polling stations. 6.

Polling station needs to be well designed to allow for easy entry and exit. There must be a safety corridor where only ECK personnel, party agents and those voting are permitted. Clear open space must be left between the polling station door and the security rope. Only a few voters should be allowed inside the polling station at a time.

Pending implementation

8. 9. 10.

Party agents undergo ECK-supervised training similar to poll workers. Agents should not be allowed into the polling station unless they have undergone the training. After training, all poll workers and party agents need to be sworn. One poll worker be trained as a “greeter” for each polling station. On election day, the ECK, not polling agents, should make plans to provide polling station staff with food and water.

Work in progress

Training on going - pending Pending Pending Budgeted for already

1.3.5.1 Challenges and gaps identified in electoral preparations. • In as much as the delimitation of constituencies was conducted within the time frame and in the manner recommended by the IREC Commission, it emerged during the interviews that the desired objective was not entirely achieved. In spite of the fact that there were consultations and that members of the public were involved in the process, there seems to be little understanding of the overarching objective, which was to ensure equality of the vote. The ordinary citizens interviewed, appeared to be of the view that delimitation was for administrative or other unclear but decidedly ulterior purposes. As a result, the transparency and fairness of the process appears to still be in contention. •

•

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There is also the issue of the establishment of a new voter registration system, which is yet to be undertaken. The issuance of identity cards still remains a drawn out process, which has translated into concerns over delayed voter registration. In addition, the requirement of a voter’s card for the purposes of voting still stands. It has been argued that this redundant requirement might preclude some voters from voting. There was positive feedback in relation to the electoral preparations being carried out by the IEBC, particularly the recruitment and training of staff. However, a section of Respondents felt that there was not enough being done to regulate political campaigns as they had already began even before the officially designated period. In relation to the question of technical assistance, it was not immediately clear whether the country has received it. It remains to be seen how the IEBC will apply the lessons learnt from various other jurisdictions.

On the issue of preparations for polling day operations, it was aptly observed that given the number of elective seats that are being subjected to the vote, the voting process might not realistically be completed in one day. The Respondents, notably the IEBC officials, noted that while the electoral management body was making suitable and timeous preparations, there

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were concerns as to whether all voters who turned up to vote would do so. This is exacerbated by the fact that election rules and regulations prescribe that polling stations ought to close the gates at around five in the evening. The situation was compared to bank customers who are standing on a queue waiting to be attended to, and they would have to be served if they were still on there at closing hours.

1.3.5.2 Recommendations â&#x20AC;˘ There ought to be sensitization and education of the public so as to create awareness as to the true meaning and purpose of delimitation of constituency boundaries. â&#x20AC;˘

The management of polling day operations must be well thought out and all technical and other forms of relevant assistance ought to be extended to the IEBC.

1.3.6 Vote counting, tallying and announcement of results No. 1.

RECOMMENDATION ECK integrates the various descriptions of the entire counting and tallying procedure into one document.

STATUS There is no one instructive document but use of electronic equipment wherein voting and counting will be done together and tallying will be done at least three times a day at different intervals will be usedes as those of the IEBC will be reliable.ounced and verified and then e process.o how the decis

ECK to have an integrated and secure tallying and data transmission system, which will allow computerised data entry and tallying at constituencies, secure simultaneous transmission to the national tallying centre, and the integration of this results-handling system in a progressive election result announcement system.

This has been done. Form 16 will now be signed by both the Returning officer and the candidates agents There will be an electronic system to transmit results to the National Tallying Centre. This is a secure system to be provided by Safaricom Company. It succeeded in the referendum and will be used in general elections The Returning officer will make periodic announcements (at least three times) of results through the same system so as to void clogging and delays in transmission of results

Media must have full access to this new system, which will not be a problem if it is properly constructed

Ample time be allowed for verifying provisional results, so that they are declared final/official only once there is no risk that errors may still be found or non-frivolous objections raised.

The IEBC proposes to have tallying centers wherein results are publicly announced and verified and then electronically transmitted. This is intended to negate the mediaâ&#x20AC;&#x2122;s need for its own tallying centers as those of the IEBC will be reliable. Election Act allows IEBC to declare provisional results before final results.

1.3.6.1 Challenges and gaps identified in vote counting, tallying announcement of results â&#x20AC;˘ It was observed that the introduction of an electronic system for tallying the vote would be instrumental in ensuring the integrity of the election result. Respondents expressed their confidence in such system, especially in view of the fact that the results would be fed in after being counted publicly and in the presence of all stakeholders at the polling centres. However, it was noted that an electronic system is only as good as the person inputting the information. Thus, if the wrong data was fed in, the wrong information would be obtained. Computerization does not validate the data. The IEBC officials sought to clarify that since all the stakeholders including party agents and observers would be present, then there would be no opportunity for such errors. This is because the information in the Form 16A to be presented by the returning officers at the tallying centre would have to correspond to that electronically transmitted from the polling centre. Further, it was assured that the IEBC is building integrity into the electoral process in two ways, namely the people and the processes. By making their staff permanent thus increasing the stakes for the officials and training them on the importance and sensitivity of their responsibilities as well as embracing technology to eliminate margins of error, the probability of inaccurate election results had been limited. â&#x20AC;˘

The challenge regarding access to the tallying centre by the media .is necessary and IEBC is currently approving accreditation to organisations and persons who are interested in observing the elections. However the process of accreditation is very slow and applications have overwhelmed IEBC Furthermore the argument that since the IEBC electronic system would be highly accurate -due to the verification procedures- and also fast, the media could report results as and when received. There would be no need for them to establish their own tallying centres and to transmit conflicting results as in the former election. However, there were concerns about the reliability of the IEBC system given that like other electronic systems it relied on internet service provider coverage. This means that in areas in which network coverage is patchy, there would be a delay in transmission of results.

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•

• • •

•

There are other problems associated with the proposed electronic system including that not enough has been done to ensure seamless integration and it remained to be seen how effectively this would be performed. In addition, there were concerns about network security, given that electronic systems can be hacked and the information therein tampered with or destroyed. Delays and clogging of the systems cannot be ruled out considering the vagaries of technology Opening of poll centres due to various logistical problems

Security for the IEBC staff and polling materials. That attack on IEBC officials in Malindi during a mock poll exercise is notable. It was stated that there will be about 40,000 polling stations and each would require two police officers and it is obvious that the police may not match this requirement Delayed and incomplete Police reforms leading to uncertainty in adequate security arrangements. The Inspector General of Police has however assured the public of adequate security during voting. However, recent unresolved security incidences raise anxiety among the public that security may not be completely assured.

1.3.6.2 Recommendations • The electronic system to be adopted by the IEBC would have to be secure, reliable and foolproof in order to achieve the double objective of ensuring accuracy and inspiring public confidence in the outcomes. • Candidates to sensitize their agents of the requirement that they ensure they sign form 16 1.3.7 Post-election procedures NO. 1. 2. 3.

RECOMMENDATION ECK institutionalise the practice of post-election audits and evaluations. Post-election audits be conducted by an independent auditor and made public. ECK publishes on its website the results for all polling stations.

STATUS Already tested and implemented in referendum and by elections. Already tested and implemented in referendum and by elections Already tested and implemented in referendum and by elections

1.3.7.1 Challenges and gaps identified in post election procedures The constitutional and legal changes establishing the framework for timely adjudication of election disputes is commendable. However, Respondents noted that the number of possible election disputes given the magnitude of contested elective posts and the scope of the election might be overwhelming. The Judicial Working Committee on Elections finalized the training of all judges, magistrates and court registrars to handle the disputes. The resident magistrates would hear petitions against county representatives while the High Court would deal with disputes involving parliamentary, senatorial, governorship and women representative contestants. The Supreme Court would handle the presidential election petition. The challenge then is whether the Judiciary has the capacity to handle the plethora of cases that might come with elections. â&#x20AC;˘

In relation to post-election audits and analysis, swearing in and assumption of office, Respondents observed that no objective assessment could be made as these processes are untested. Thus, it was a subject that could only be authoritatively discussed after the next general election.

1.3.7.2 Recommendations â&#x20AC;˘ The post-election processes ought to be as transparent and participatory as the pre-election procedures. If this is done and the political interference which is constantly decried at every stage of the electoral process is eliminated, then the election result can be accepted as fair and legitimate. â&#x20AC;˘ There is no law governing the conduct of a run off save the constitution. This law ought to be enacted

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1.4 CONCLUSION The Kriegler Report set out to highlight the findings relating to IRECâ&#x20AC;&#x2122;s examination of all the aspects of the 2007 election with a view to ensuring that similar tragic events can be avoided in future. To that end, six recommendations were developed along with detailed provisions about what ought to be implemented before the next election. This Report has applied a forward-looking perspective not only to examine the status of implementation of each of the recommendations but also to identify the gaps and weaknesses in realizing the same. This Report has proceeded to advance constitutional, legal and policy interventions that ought to be effected to actualize the Kriegler recommendations. There have been constitutional and legal changes in line with the first recommendation, but it has been observed that these can only be effectively implemented if the letter and spirit of the law is observed. The judicial function of interpretation is considered vital to achieving the desired aspirations of the Kenyan people, particularly with regard to elections and its outcomes. In relation to the structure and composition of the electoral management body, doubts about the integrity and effectiveness of the new Commission still linger. However, the progress thus far indicates that the Independent Commission intends to live up to its name and to deliver a credible and fair election to Kenyans. In regard to the issue of the electoral environment, role of political parties, civil societies, observers and the media, it is agreed that all these stakeholders are necessary to validate the transparency and legitimacy of the electoral process. However, this can only be achieved where they conduct their roles professionally and neutrally. Political parties owe the country a duty to ensure that fair conduct, practice and factual information guide their activities, while civil societies and observers are meant to act in a non-partisan manner to ensure that transparency and credibility are built into the process. The government on its part also owes the electorate a duty to put in place adequate mechanisms for free and fair elections and the fact that the Registrar of Political Parties had not been recruited was an indication that it was dragging its feet. The media has great influence and all Kenyans agree that they are highly influential and the public lends credence to what they hear or see reported. As such, the media set the agenda with powerful effects but the audience bears the greatest responsibility depending on how the decode and interpret messages. Thus, responsible, accurate, timely and veracious information ought to be disseminated to the public at every juncture. In spite of the gravity of their roles, the verdict is that all these stakeholders do not seem to inspire public confidence in their abilities to successfully conduct their roles. Thus, it is hoped that even as the election draw nearer, each one of these groups of stakeholders will embrace their duties with the urgency and professionalism required to avoid a repeat of the last elections. But again with the increasing proliferation of media houses owned by politiciansâ&#x20AC;&#x2122; impartiality and professionalism and even political propaganda stand the risk of

being seriously compromised hence reversing the gains made so far. Furthermore, the Elections Act focuses on state owned media and the right to equal coverage and accountability. Accountability of private owned media houses is left to MCK to manage-through the MCKs election coverage guidelines.

The fourth recommendation dealt with electoral preparations and it has been noted with satisfaction that a lot has been done by the IEBC, but there is more to be resolved and it appears that a wait-and-see approach has been adopted. In this way, the populace simply watched and waited to see whether IEBC would deliver on their word, for instance regarding the issue of voter registration, electronic voting, election dates and preparation for the run-off. With voter registration, the public had to lower its expectations when it emerged, contrary to earlier undertakings by the IEBC that the biometric voter registration would not allow voters to register in one place from another. Similarly, voters would have to vote where they registered and have to be physically present to do so. In other words the stated potential of an electronic system has not been fully realized. The pursuit of registration and voting for the Diaspora was abandoned for logistical and cost reasons. Nevertheless, the IEBC enjoys great public support and trust. Vote counting, tallying and transmission have yet to be interrogated exhaustively because this experience is yet to be tested.

Even though the by elections were smooth and was indicative of the seriousness and preparedness of the IEBC the main elections will prove to be an even bigger test. This is considering its magnitude. However, the proposed electronic system seems to have placed many a Kenyan soul at ease, with the confidence that the system is going to be harder to tamper with than the former manual system. But whether Kenyans will trust electronic systems completely enough for them to register as voters freely is still a cause of serious concern. There are also measures built into the process to ensure that other stakeholders such as the media can verify the integrity of the results.

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So formally, the opportunity for significant change is in place with the new constitution for the next election. Â However, implementation is very much a work in progress and the new mechanisms are untested or not yet in existence. The overall conclusion is since the test of any law is in implementation and effective enforcement, then it is anticipated that the next election will be as credible, fair and free as hoped, at least in as far as the generation and transmission of results will be concerned.

Lastly, on the issue of post-election procedures, the consensus is that the pitfalls associated with this stage of the electoral process cannot be clearly foreseen. It can only be anticipated that the number of elective seats would exponentially increase the instances of election suits and that a run-off might practically be very challenging to hold. It is no consolation that the law as relates to presidential run-off is obscure. At this point, many analysts can only speculate, but the law as it stands appears to have failed to offer sufficient guidelines as to what ought to be done at that stage. Hence on the Recommendation regarding post-election

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procedures, not much response was obtained, the reason being that it is an untested area and a wait and see attitude was the best that position that could be taken. Not much preparedness has been exhibited by IEBC and other stake holders in the electoral process. This Report has delved into every aspect of the Kriegler Recommendations and it is hoped that the challenges and solutions advanced herein shall be applied to inform a review and refinement of the electoral process that is already in motion for the election on March 4, 2013.

ANNEXTURES ANNEXE 1: LIST OF KEY INFORMANTS INTERVIEWED 1. Jimmy Mwangi - Businessman in Ngong (Kajiado North)

2. Mary - Secretary to the District Commissioner Athi River (Lower Eastern) 3. Dismus – Official at Kenya Institute of Education (Starehe) 4. Maurice – Security Guard at Menja Plaza (Juja)

5. Commissioner Lillian Mahiri-Zaja – Deputy Chairperson IEBC

6. Andrew Limo – IEBC Public Relations Officer (HQ-Anniversary Towers) 7. Naisiae Tobiko – Constituency Elections Coordinator (Kajiado North) 8. Muigai – Constituency Elections Coordinator (Starehe) 9. Kimani - Constituency Elections Coordinator (Juja)

10. Saitabao - Constituency Elections Coordinator (Naivasha)

11. Lucy Kambuni - Former Commissioner (Kriegler Commission)

12. Prof. Karuti Kanyinga – Kenya National Dialogue and Reconciliation Monitoring Projects and International Election Observer. (EO)

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13. Duncan Okello – Judiciary

14. Representative (KHRC)- Election Observers (EO/CSO) 15. Prof. Levi Obonyo (Chair- Media Council of Kenya) 16. Mr. Martin Oloo – ODM Political Representative

17. Reverend Peter Adolwa – Anglican Church of Kenya (FBO)

18. Pastor Edwin Njue – CITAM Karen (Pentecostal Church) (FBO)

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ANNEXE II QUESTIONNAIRE SEEKING TO ESTABLISH THE STATUS OF IMPLEMENTATION OF THE KRIEGLER REPORT RECOMMENDATIONS 1. (a) How has the new Constitution of Kenya 2010 addressed the following issues: i. The right to citizenship, right to vote and be elected at elections? ii. Voting by universal and equal suffrage? iii. Discrimination against persons with disabilities in the electoral process? (b) Are there any gaps in the constitutional provisions relating to the foregoing issues? (c) What recommendations would you make to ensure that these issues have been adequately addressed?

2. (a) To what extent have or will changes in the electoral laws ensure free, fair and democratic elections in future? (b) In your view, are the electoral laws and policies sufficient to achieve the objective of free and fair elections or are there any identifiable weaknesses? (c) What further recommendations would you make to remedy the identified weaknesses?

3. (a) How have judicial reforms contributed to ensuring that the electoral process is credible and that a just conclusion to election disputes is achieved? (b) What still remains to be done in order to ensure that the election disputes are resolved in a just, timely and conclusive manner? (c) How would you add to the judicial reforms that have already been undertaken?

4. (a) Has the strengthening of the electoral management body ensured the integrity of the election process? (b) Are there any gaps revealed by the measures that have been taken so far? (c) What recommendations would you make to ensure that the electoral management body is sufficiently strengthened?

5. (a) Has the electoral management body, IEBC, put in place adequate measures to affirm and enforce compliance of political parties with electoral laws, conduct and fair practice? (b) Is there more that can be done to ensure political party compliance? (c) In your view, what further measures can be taken to ensure that electoral laws, conduct and fair practice are observed by political parties?

6. (a) What steps have been taken to see to it that public participation through the media promotes informed and unbiased electoral coverage? (b) To what extent do these measures suffice to meet the identified objective? (c) What recommendations would you make to ensure that media participation achieves the identified objective? 7. (a) What steps have been taken to see to it that public participation through civil society, faith-based organizations and observers promotes transparent and equitable electoral coverage?

(b) To what extent do these measures suffice to meet the stated objective? (c) What recommendations would you make to ensure that civil society, faith-based organization or observer participation achieves the stated objective?

8. (a) How has the current delimitation of constituency boundaries impacted upon the equality of the vote in the next general election? (b) What are the weaknesses in the manner in which delimitation has been done? (c) What recommendations would you make concerning the delimitation of constituency boundaries that would enhance the equality of the vote?

9. (a) What measures have been put in place by the IEBC to ensure that the vote counting, tallying and results transmission process shall be valid and accurate? (b) To what extent do these measures inspire public confidence and are there any weaknesses that can be identified? (c) What recommendations would you make to the IEBC to streamline their vote counting, tallying and results transmission process? 10. (a) What is the impact of the electoral preparations including postelection procedures implemented thus far by the IEBC? (b) In what manner have or will the preparations contribute to a peaceful election and have there been any shortcomings? (c) What further measures would you advance to ensure that IEBC processes deliver transparent, accurate and legitimate elections?

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