On 1st September 2017, the Supreme Court of Kenya set precedent by becoming the first African Court to nullify a Presidential Election on the grounds of illegality of the process, which was found to be marred by massive irregularities. The judgment contradicted the reports by several election observer missions, including the European Union (EU) Observer Mission led by Marietje Schaake, the Carter Center led by John Kerry, the Commonwealth Observer Mission led by John Dramani Mahama, the African Union (AU) Observer Mission led by Thabo Mbeki and the East African Community Mission led by Edward B. Rugumayo, which largely endorsed the election as having constituted a free, fair and credible process in accordance with international standards.
The AU mission went on to state that the Kenyan election was indeed one to be emulated throughout the continent. A reading of the AU mission’s preliminary statement reveals a great emphasis on the peaceful nature of the vote casting process which seemingly, in its understanding, automatically culminated in a free, fair and credible election process. John Kerry echoed these sentiments when he opined that the election was fair and credible because he did not see any dead people casting their vote, in mockery of legitimate concerns raised by the opposition leader Hon. Raila Odinga, and members of the general public, about the veracity of the voter register which had been the subject of an audit by multinational company KPMG– a process which failed to resolve many pertinent issues, including its retention of dead persons as eligible voters, thus giving leeway for vote rigging. John Kerry’s attitude mirrored the general widespread presumptuous and dismissive attitude of the various election observer missions, which took Kenyans and other Africans of good will by surprise.
In the run up to the general election, which was held in August 2017, a key member of Kenya’s electoral commission, namely the Independent Electoral and Boundaries Commission (IEBC), was gruesomely murdered. The deceased corpse was discovered with a missing arm, indicating the possibility of torture, which was subsequently confirmed following a post-mortem examination. At the very least, one would have expected a remark from the various observer missions on the possible impact of the murder on voter intimidation, the intimidation of the IEBC officials and perhaps even a suggestion of a vote rigging ploy, considering that the murdered official was the ICT manager of IEBC and was charged with the responsibility of securing the vote transmission system. Surprisingly, the murder was not featured in many of the preliminary statements of the observer missions. The EU Preliminary Observer Mission statement casually mentioned the incident, but in a dismissive undertone, added that it had noted that the matter was “under investigation” and that it hoped that justice would prevail. On the other hand, John Kerry urged politicians not politicize the murder. While there is logically no expectation for the observer missions to comment on the substantive criminal justice aspects of the incident, a complete omission of the murder’s potential impact on the electoral process was a huge misstep on their part.
When the election date finally arrived, Kenyans were involved in a peaceful vote casting process. At around 5.00 p.m. the same day, many polling stations were closed and the vote counting and tallying process began. In a few hours, the IEBC through an online portal began transmitting the election results from the various polling stations, and this is where the problems began. The results tallied at the polling station were being broadcasted without the appurtenant Form 34As as was required by law. The opposition team forthwith rejected the results prior to the official declaration of the winner by the IEBC. They submitted a memorandum of issues that, in their opinion, needed to be addressed by the IEBC pursuant to its constitutional mandate which includes dispute resolution. In a surprising move, the observer missions overstepped their mandate, by coming together to counter the allegations made by the opposition in one accord with the IEBC.
What followed was seemingly an aggressive campaign by the missions’ representatives, most notably John Kerry, to silence any allegations of electoral impropriety, which were raised by the opposition and Kenyans at large, who eventually began to question the veracity of the results when it became apparent that the documents recording the supposed outcome were lacking in form and substance as to suggest undue tampering. Instead of acknowledging the grave legal issues being raised, the observer missions pursued a spirited campaign to arm-twist Raila Odinga to concede defeat even before the official results had been declared by the IEBC, notwithstanding that conceding is not a legal requirement under the laws of Kenya.
Eventually, the IEBC formally declared Uhuru Kenyatta as the duly elected President of Kenya. Note that at the time of making this declaration, the IEBC had not yet received a large number of the Form 34As that recorded the election outcome at the various polling stations countrywide. The observer missions were not perturbed by this. Surprisingly, days after the election outcome was declared, votes were still streaming into the portal. Despite the obvious anomalies, the observer missions remained adamant in their assertion that the election was free, fair and credible.
The IEBC declaration immediately ignited sporadic protests in Kisumu and several slums including Kibera and Mathare, which are perceived strongholds of the opposition. Under the guise of maintaining law and order, the government’s security forces responded to the protests by executing a door-to-door rampage in these areas, where ethnic Luos (Raila Odinga’s tribesmen) were specially targeted and killed in a fashion likely to amount to a state-sponsored genocide under international law, a fact that should have been of grave concern to the observer missions.
All factors considered, it is fair to say that the election observer missions were grossly negligent in executing their mandate with respect to Kenya’s election. Following the ruling of the Supreme Court of Kenya, the world has had to grapple with the question of whether there is a need for election observer missions. An even bigger issue is one of competence and the capacity of the election observer missions and their representatives to determine with certainty that an election was free, fair and credible. Perhaps the community of nations ought to embrace mechanisms that allow for the proper vetting of mission representatives, and adopt accountability measures that allow scrutiny of the functions of the missions by other independent bodies.
Urgent reforms are necessary considering the degree of importance placed on election observer mission reports by the international community. The reports form the basis of which international states recognize a State’s elected leaders. If these reports fail to capture material factors as in the case of Kenya, this could lead to embarrassment where recognition is subsequently retracted after being accorded to improperly elected officials. Even more crucial, as was the case in the Republic of the Gambia earlier in the year, election observer mission reports could form the basis for intervention by the community of nations where political anarchy results from an electoral process. It is frightening to imagine that misrepresentations and the negligence occasioned by observer mission representatives could possibly lead to ill-advised international interventions.
All in all, the situation of Kenya has raised awareness of the shortcomings of international election observer missions especially when exercising their mandate within African borders where it appears that a lower standard is applied when evaluating electoral integrity. Further, Kenya exposed the paternalistic approach of these missions in their overemphasis of the peaceful aspects of the process at the expense of justice and electoral credibility. Racist undertones were also present with individual mission representatives ursurping powers exceeding their actual mandate to lecture Africans into accepting mediocre elections akin to their “lowly status”.