List of Acronyms …………………………………………………………………………………………………………..iii
Table of Cases ……………………………………………………………………………………………………………….iv
Abstract ………………………………………………………………………………………………………………………… v
TOC o “1-3” h z u 1.CHAPTER ONE- BACKGROUND TO THE STUDY41.1Introduction41.2Background to the Problem81.3Statement of the Problem101.4Scope of the Study121.5Conceptual Framework121.5.1Democracy131.5.2Free and Fair Elections141.6Research Objectives151.7Research Questions PAGEREF _Toc525734514 h 181.8Hypothesis PAGEREF _Toc525734515 h 181.9Literature Review PAGEREF _Toc525734516 h 181.9.1Democracy and the Standard of Free and Fair Elections PAGEREF _Toc525734517 h 181.9.2Legal and Institutional Framework on Presidential Elections in Kenya181.10Justification of the Study311.11Methodology321.12Limitation of the Study321.13Partition of the Thesis332.CHAPTER TWO – DEFINING FREE AND FAIR ELECTIONS352.1Democracy352.2Free and Fair Elections392.3Legal Framework on the Concepts of Democracy and Free and Fair Elections.422.3.1The Constitution of Kenya 2010422.3.2Universal Declaration of Human Rights (UDHR)442.3.3International Covenant on Civil and Political Rights (ICCPR)462.3.4African Charter on Human and Peoples Rights (ACHPR)462.3.5Declaration on Criteria for Free and Fair Elections462.4Conclusion483.CHAPTER THREE- ANALYSIS OF THE CONSTITUTIONAL FRAMEWORK USING THE STANDARDS IN THE DCFFE503.1Electoral Law and system513.1.1Electoral law513.1.2Electoral system533.2Constituency delimitation613.3Management of Elections653.3.1The Independent Electoral and Boundaries Commission663.4Voting Rights PAGEREF _Toc525734540 h 7072
3.5Registration of Voters PAGEREF _Toc525734541 h 763.6Dissemination of Information to Voters803.7Candidates, Political Parties System and Organisation.883.7.1Candidates PAGEREF _Toc525734544 h 783.8Campaigns and Protection of Fundamental Human Rights1003.9Balloting, Tallying and Announcement of Results1094.CHAPTER FIVE -CONCLUSION AND RECOMMENDATIONS1114.1Conclusion1114.2Recommendations1134.2.1Electoral Systems1134.2.2Right to vote113 4.2.3 Legal and Institutional Framework…………………………………..…………..113
4.2.3Matters for Further Research1165BIBLIOGRAPHY117
CHAPTER ONE- BACKGROUND OF THE STUDY
Elections are considered to be very important especially in the context of the African democratization process. Kenya’s democracy is mainly assessed by the manner in which it conducts election. This has been the case since early 1990s when multi-party politics was taking shape in the Continent. However, the nature of most of these elections has been far from what can be considered as free and fair. MC Fombad, a scholar, notes as follows:
“Although multiparty elections have become more frequent and regular, it is clear that the quality of these elections and their ability to provide an opportunity to citizens to determine who governs them has been steadily reduced since 1994.”
Kenya’s first direct elections involving Africans took place in 1957 when the first African was elected to the Legislative Council. Other subsequent elections were held in the years 1963, 1969, 1974, 1979, 1983, 1988, 1992, 1997, 2002, 2007, 2013 and recently 2017. Jomo Kenyatta held the position of the Presidency between the year 1963 and 1979 while Daniel Arap Moi held the same position from the year 1979 to 2002 when he handed over power to Mwai Kibaki. The Kenyatta and Moi regimes were characterised by iron rule. The political atmosphere was characterized by suppression of the opposition, electoral fraud and manipulation of the elections to keep the incumbents in power. The height of electoral malpractices was demonstrated in the 1988 election which saw the advent of the mlolongo system of voting. This system of voting required people to queue behind their preferred candidates in broad day light. This was viewed as an affront to democracy because people’s loyalties would be questioned if found on the ‘wrong’ queues while others would be harassed into joining preferred queues. Citizens began agitating for multiparty elections culminating in the Saba Saba political rally held on 7th July 1990. The rally was violently dispersed by state security agents as a result of which many lives were lost. The activities by the Moi regime undermined political rights of citizens. Kenyans were not free to form political parties, they could not vote freely and were denied opportunities to choose their preferred presidential candidates.
As a result of sustained pressure from different political and nonpolitical players, in 1991, Moi bowed to the pressure and led Parliament in repealing Section 2A of the 1969 Constitution which had made Kenya a one party state. He also led the amendment of the Constitution to allow a maximum of two five year terms for a president. Effectively, Kenya moved from a de jure one party state to a multi-party state. On 29th December 1992, the first multiparty elections were held in Kenya. While these preceding steps would ordinarily have been considered to be progressive, they were watered done by the irregularities in the elections. Moi, in an effort to suppress competition, had orchestrated ethnic violence across various parts of the country to instill fear in the polity and disperse voters in opposition strongholds. This affected the citizens’ political rights to vote and participate in political parties of their choice. Moi also meted violence upon his opponents with a similar pattern emerging in 1997 where although he was very unpopular, he ended up as president with a majority in parliament. It is recorded that the 2002 elections did not register organised ethnic violence that had characterised the 1992 and 1997 elections which were allegedly instigated by the Moi regime. This was attributed to the fact that Moi had exhausted all rights under the Constitution to run for president having served the maximum two terms.
Stephen Brown, an academic scholar, argues that Moi won the 1992 and 1997 elections because he hand-picked electoral commissioners who were under instructions to ensure that he won the Presidency and clinch a majority of the parliamentary seats. This portraye lack of independence of the electoral body. Moi’s influence was also felt in the Judicial circles. In 1991, an election petition filed at the High Court by Mwai Kibaki to challenge Moi’s election was dismissed by the Court due to technicalities that arose from service of the Petition. The Court found that the election petition was not personally served on Moi as it ought to be. One cannot overemphasize the difficulty in effecting service upon a sitting President . The decision of the Court brought to the fore the maladies of the presidential electoral dispute resolution legal framework.
In 2007, general elections were held in which President Kibaki, the incumbent at the time, and Raila Amolo Odinga were the two main contenders of the presidency. The elections were considered by some as a sham due to various factors including but not limited to tampering with the vote tallying process. Some have also questioned the independence of commissioners who were serving in the Electoral Commission of Kenya since they were unilateral picked by President Mwai Kibaki.
On 30th December 2007, the ECK Chairman, Samuel Kivuitu, hastily declared Mwai Kibaki as the winner of the presidential elections. He astounded Kenyans when he subsequently admitted before the whole nation that he did not know which of the two presidential candidates had won the elections.
The bungled elections led to riots predominantly in the opposition strongholds. There was ethnically targeted killing of people, looting and destruction of property belonging to communities aligned to either side of the political divide. The violence left over 1000 people dead and over 3000 displaced. To resolve the stalemate, former United Nations’ Secretary General, Koffi Annan brokered a power sharing deal between Raila Odinga and Mwai Kibaki on 18th February 2008. As a way forward, two important commissions were set up: Commission of Inquiry into Post-Election Violence (CIPEV) and the Independent Review Committee (IREC). The IREC investigated all aspects of the 2007 presidential elections and presented its findings and recommendations to improve the electoral process. Some of the recommendations were implemented in the new electoral framework.
Elections have been faithfully held in Kenya, but electoral outcomes have not translated into sustainable democracy. The perennial electoral malpractices were caused fundamentally by inadequate legal and institutional frameworks in place at the time. Previous attempts at amending the legal framework governing electoral processes were piecemeal and lacked strong constitutional backing. The imperial presidency engineered by the Kenyatta and Moi regimes also gave the president immense powers which emasculated key institutions that were facilitating electoral processes. As a result, Kenyans lacked faith in the ability of the ECK, the judiciary and other state agencies to ensure free and fair elections. Prof . Migai Akech argues that these concerns by the citizenry increased their tendency to resort to violence when they considered the electoral outcomes as “unfair”.
One of the purposes of the agitation for reforms from the 1980s was to establish an electoral system founded on proper legal, institutional and administrative frameworks. Kenya promulgated the new Constitution on 27th August 2010 and with it came a number of legal, institutional and administrative reforms. The reforms were either expressly provided in the Constitution or required by the Constitution to be enshrined in legislation to be enacted within stipulated timeframes. Several reforms touching on the presidential electoral process were included in the Constitution of Kenya 2010 and form the subject of this study.
Background to the Problem
Kenyans went to vote for the first time under the new constitutional regime on 4th March 2013. The 2013 general elections were therefore a litmus test for the legal, institutional and administrative frameworks on the electoral processes brought by the Constitution of Kenya 2010. The two top contenders for the presidency were the Jubilee Coalition (The National Alliance and United Republican Party) led by Uhuru Kenyatta and William Ruto and the Coalition for Reform and Democracy (CORD) Alliance (Orange Democratic Movement/Wiper Democratic Movement/ Ford Kenya) led by Raila Odinga and Kalonzo Musyoka. When the results were declared, Raila Odinga , the CORD presidential candidate, declined to accept the results of the elections. He claimed that the Independent Electoral Boundaries Commission (IEBC) had failed to conduct fair and credible elections and that he would challenge the results in Court. According to Crisis Africa Group briefing, there were irrefutable shortfalls in the electoral system. This included system breakdown and delayed vote tallying which negated the credibility of the results.Raila Odinga and the Africa Centre for Open Governance (Africog) filed separate petitions at the Supreme Court of Kenya (SCK) pointing out a number of irregularities in the electoral process. On 30th March 2013, the Supreme Court unanimously dismissed the petitions and declared that the presidential elections were free and fair and reserved the reasons for its decision to a later date. The Supreme Court’s judgment has, however, been criticized for failure to rebuke the electoral body’s inadequacies amongst other reasons.
On 8th August 2018, the second presidential election under the 2010 Constitution was held. This was a hotly contested election between Uhuru Kenyatta with his running mate as William Ruto and Raila Odinga with Kalonzo Musyoka as his running mate. The other presidential candidates were Ekuru Aukot, Abduba Dida, Jirongo Shakhalaga, Michael Mwaura, Joseph Nyaga and Japheth Kaluyu. The Election Day was reported by the European Union Election Observer Mission EO-EOM as smooth with a few reported incidents. However, the EU-OEM Report also castigated the election as one that was characterized by a protracted and damaging presidential race that cost lives thus undermining Kenya’s democracy.” The results of that presidential elections were challenged at the Supreme Court by Raila Odinga. The Supreme Court nullified the elections and ordered a fresh presidential election within sixty (60) days. The decision by the Supreme Court led to mixed reactions from supporters of President Kenyatta and those of Raila Odinga. The happenings of the elections of March 2013, 8th August 2017 and 26th October 2017 invite a study into the legal framework guiding presidential elections in Kenya . This is further necessitated by the allegations of electoral malpractices and the criticism of the SCK’s judgments because they impute inadequacies in the legal or institutional framework on presidential elections and invite examination.
Statement of the ProblemThe principles of free and fair elections are an important tool in evaluating the credibility of an election. That credibility is crucial because it underpins legitimisation and recognition of a government. Any government derives its legitimacy from the fact that it was elected by the people in a free, fair and transparent manner. The introduction to this study has highlighted how past elections were marred by violence and irregularities. The autocratic presidency perpetuated by Moi and Kenyatta negated the principles of separation of powers thus weakening the key institutions of judiciary and parliament. This resulted in the passing of electoral laws designed to keep the presidents in power. A good is example is the law that made Kenya a de jure one party state without limiting presidential terms. The electoral dispute resolution mechanisms for presidential elections were also inadequate mainly due to weak laws and institutions such as the judiciary and the Electoral Commission of Kenya. These institutions were made to be subservient to the president. The consequences included but not limited to curtailment of political rights since citizens were unable to vote freely and when they voted, their votes did not translate into their intentions. Those who vied for the presidency did not have a fair chance because electoral processes were manipulated to keep the incumbent presidents in power. Due to the weakened judicial and electoral institutions, getting legal redress was difficult with respect to presidential elections. In as much as elections were being held, a host of other factors went contrary to democractic principles that surrounds free, fair and transparent elections which enable people to choose their leaders in a credible process.
The Constitution of Kenya 2010 (CoK) was promulgated with the aim of addressing challenges experienced as a result of weak legal, institutional and administrative frameworks in the country. It intended to cure legal issues including but not limited to those surrounding the presidential elections. The 4th March 2013 general elections put to test the new legal and institutional framework brought by the Constitution. Despite the efforts and intentions put towards reforming the electoral process in Kenya, Raila Odinga and Africog claimed that the 4th March 2013 elections were marred with irregularities and were not free and fair. In their respective election petitions to the Supreme Court of Kenya (SCK), they raised several issues revolving around the manner in which the IEBC’s conducted the Presidential elections. These allegations were presented to the Supreme Court. It held that the elections were free and fair. However, a number of legal practitioners and scholars have faulted the manner in which the Supreme Court arrived at that determination. The declaration of the results of the elections of 2017 also gave rise to a petition before the Supreme Court. The Supreme Court annulled the results of the elections conducted on 8th August, 2018 citing various irregularities. The Supreme Court directed that another presidential elections be held within a period of sixty (60) days. The Supreme Court upheld the results of the elections held on 26th October 2017.
In light of the challenges experienced by the Independent Electoral and Boundaries Commission in conducting elections and the petitions filed in Court challenging elections results, it is important to examine whether the legal and institutional framework introduced by the Constitution of Kenya 2010 facilitate free and fair elections.
Scope of the StudyThis study assesses whether the Kenyan Constitutional framework on presidential elections facilitates free and fair elections. As such, the study primarily focuses on the provisions of the Constitution of Kenya affecting presidential elections. This study elaborately examines political rights, the presidential electoral process and the institutional framework for presidential elections as provided in the Constitution of Kenya. Political rights are examined for the reasons that the right of an individual to vie for political office including the presidency and the right to vote are at the core of any elections. Without these rights, elections would not be democratic. Critical examination of international instruments, Acts of Parliament and legislated rules affecting presidential elections in Kenya are outside the ambit of this study. However, they may be quoted for reference purposes or to assist in explaining the constitutional provisions.
Conceptual FrameworkThe main concept that will run through the fabric of this study is that of democracy. Emphasis will be laid on the principle of free and fair elections primarily because free and fair elections has been generally accepted as a standard to measure democratic practices. To demonstrate this interlacing, the concept of free and fair elections has been considered so important in democracy, that its absence may lead to a verdict that a state is undemocratic. Democracy finds relevance in this study because one of its key elements is conduction of free and fair electioms. The idea being that citizens have an equal right to participate in the governance of their country. This is usually through referenda and elections. Free and fair elections, as will also be discussed in this chapter, is a concept in democracy that underscores the importance of credible and transparent electoral processes.
Kenya’s chequered political history portrays electoral malpractices such as violation of political rights and tampering with electoral process outcomes. The clamour for constitutional reforms in Kenya was fuelled by inter alia, the need to have legal, institutional and administrative frameworks that increase democratic space and facilitate credible electoral processes. These aspirations embody the concept of democracy and more particularly, free and fair elections. Of importance, is the general perception that inclusion of democratic principles in legal and institutional frameworks would to a great extent resolve the historical problems in the electoral processes in Kenya. It is against this background that the concept of democracy and especially the principle of free and fair elections are used in this study. These principles are used to assess whether the Constitution is facilitative of free and fair presidential elections.
DemocracyDemocracy has been defined as a rule by the people. Michael Saward posits that democracy includes popular rule and participation, competition in elections, equality of the adult polity, protection of freedoms, competition, pluralism and constitutional rule. It must however be noted that various authors define democracy differently but the common factors appear to be popular control and political equality of citizens. To deal with these contentious debate on the definition of democracy, Saward proposes that general principles be adopted as basic guidelines. The main tenets of democracy are discussed below:
Popular control refers to a system that allows citizens to participate in national decision making on matters that affect their lives. Collective decisions such as choosing of leaders and passing of laws should be the will of the majority of equal citizens of that society. That will of the people may be expressed directly or indirectly through representatives. The main thread in popular control appears to be that citizens should govern themselves and the decision of the majority will guide the affairs of that society. In a democratic society, elections and referenda become the mechanisms through which individuals can express their desires.
Political equality is underpinned by the assumption that everyone has an equal capacity for self-determination and to have their interests considered when they are made. The principle ensures that every individual enjoys political rights to the same measure and that no individual’s or group’s preference is weighted in law more than others.
Adam Przeworski adds that democracy may be looked at from two perspectives: that of the individual citizen and the institutions. This distinction is critical to this study because the study assess political rights (individual’s perspective) on one hand and the legal and institutional framework of presidential electoral process in Kenya on the other hand. It is noteworthy that democracy is a multifaceted concept encompassing various offshoots. For example there are inter alia pluralist democracy, participatory democracy, and liberal democracy.
Free and Fair Elections
Having laid the foundation that democracy is mainly expressed in elections and referenda, it is important to examine the quality of the elections and referenda. Free and fair elections as a concept has been considered as a tool for measuring those standards and is discussed below.
What constitutes free and fair elections has been discussed at national, regional and international arenas and certain principle tenets have emerged as underpinning this concept. Article 21 of the Universal Declaration on Human Rights (UDHR) states that the will of the people shall be:
“expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
The UDHR lays down certain tenets that constitute a free and fair election. It provides that such an election should be periodic, genuine, held by universal and equal suffrage and conducted by secret ballot . It should also be a transparent process. Guy Gill opines that, in the context of an electoral system, “free” refers to freedom of an individual to participate in the process and exercise their choice while “fair” refers to allowing individuals equal opportunities to vote in elections. He further posits that an electoral system should be impartial and non-discriminatory. Jorgen Elklit and Andrew Reynolds consider the concept of “fairness” as referring to impartiality. In their view, fairness includes both regularity in unbiased application of rules, and reasonable distribution of resources. It emerges from the UDHR and the various authors that key tenets of the principle of free and fair elections include: freedom of individuals to participate in electoral processes, equality of votes, periodic genuine elections and transparency of the processes. This study will use the standards provided in Article 21 of the UDHR as tools to assess whether the Kenyan constitutional framework is facilitative of free and fair presidential elections. This is particularly important in Kenya in view of the historical undemocratic practices that characterised the Kenyan presidential elections and the aspirations of the citizens to adopt more democratic electoral processes expressed in the Constitution 2010.
The main objective of this study is to assess whether the Kenyan Constitutional framework facilitates free and fair presidential elections.
In order to meet the main objective, the study shall also have the following secondary objectives:
To define the concepts of democracy and free and fair elections and their relevance to presidential elections in Kenya.
To assess whether the political rights enhance free and fair presidential elections in Kenya.
To assess whether the legal and institutional framework on presidential elections as provided in the Constitution facilitate free and fair elections.
Research QuestionsThis study aims to answer the following questions:
What is the relevance of the concepts of democracy and free and fair elections to presidential elections in Kenya?
Whether the political rights facilitate free and fair presidential elections in Kenya.
Whether the legal and institutional framework on presidential elections as provided in the Constitution facilitate free and fair elections.
HypothesisThe hypothesis of this study is:
The Kenyan Constitutional framework is not facilitative of free and fair presidential elections.
Literature ReviewThere is literature available that is of relevance to this study. It is noteworthy that the Kenyan Constitution was only promulgated in 2010 and the first presidential elections under the constitution were held on 4th March 2013. The literature specifically addressing the study is therefore limited. However there are several other works that are of relevance to this study and they have been reviewed under the following thematic heads:
Democracy and the standard of free and fair elections.
Legal and institutional framework on elections.
Democracy and the Standard of Free and Fair ElectionsStaffan Lindberg, in his article, ‘The Power of Elections Revisited’, provides an insightful approach to the role of elections in democracy. He begins by emphasising self-governance as the fundamental concept underlying democracy and argues his paper on that premise. In his view, the right to self-governance should never be trivialised because it constitutes a power sharing arrangement amongst the polity. He posits that democracy should be viewed not as an end in itself but as a variable attribute of a country’s political system. To him a country becomes more democratic over time. To ascertain whether a state is democratic, he proposes three substantial indicators: political participation, competition and legitimacy. He argues that every citizen must have an equal right to political participation. Political participation can be measured by voter turnout, opposition participation and absence of autocratic leadership. On the question of competition, he posits that a democratic system should allow individuals who present themselves as candidates to have equal opportunity to compete for office. Competitiveness may be measured mainly by looking at the winner’s share of the votes and peaceful handover of power to alternate governments. Finally, he argues that elections must be legitimate. In his view, legitimacy does not derive from adherence to procedures but from opinions of the political actors.
Lindberg also emphasises the importance of free and fair elections. In his view, the standard of free and fair elections determines whether an election is acceptable or not. He considers “free and fair” as a control variable that affects all other variables in assessing democracy. According to him, if fraud, intimidation or coercion are present in an election, the voter turnout will cease to be a measure of democracy because the polity’s participation will have been compromised. He cites the example of Zimbabwe where an election was marred by violence meted out by the Mugabe regime which intimidated opposition supporters from voting for the opposition. Such an election could not be termed as democratic even though an apparent winner was announced. He, however, cautions that electoral processes may have errors and those should not be interpreted to mean absence of free and fair elections.
There are various convergences between Lindberg’s paper and this study. His emphasis on popular control as a fundamental concept in democracy lends credence and context to this study. This is because, first, it shows the importance of the electoral process in a state. Secondly, that importance provides a necessary backdrop to the justification why electoral processes must be evaluated. Lindberg’s indicators of democracy have also, to a large extent, been evaluated in this study. Another important point expounded in this study is Lindberg’s view that absence of freeness and fairness in elections vitiates the elections. This position deflates the fallacy that elections are equal to democracy or that elections translate into opportunities to the polity to choose their leaders. It demands that the elections be weighed on the “free and fair” scale before they can be celebrated.
Lindberg has broadly classified the indicators of free and fair elections as political participation, freedom of competition and legitimacy of elections. This study has also recognised the importance of those indicators but takes the “rights” perspective. This study focuses on the indicators in the context of political rights as encapsulated in the UDHR, ICCPR, the Constitution of Kenya and as espoused by various authors. This distinction is important because the rights approach adds weight to these indicators: that they are not just standards of evaluation but comprise of legally recognised and enforceable entitlements of the citizens. It is noteworthy that Lindberg provides general guidelines while this study focuses on the Kenyan context and tests the constitutional framework against the standards set by Article 21 of the UDHR. To that extent, this study distinguishes itself from his works.
Jørgen Elklit and Andrew Reynolds’ article on assessment of quality of elections provides valuable contribution to this study. The article highlights the importance of assessing the “freeness” and “fairness” of an electoral process. In their view, lack of a clear measuring tool results in skewed reports on the quality of elections. They provide the example of an observer report on elections in Zimbabwe in 2002. While the election was marred with irregularities, the official South African Observation Mission termed the election as free and fair. This finding has been echoed by the Inter Parliamentary Union (IPU) Report of 2004. According to the Report, South African election observers expressed open shock at the scale and brazenness of the violence carried out by Mr. Mugabe’s roaming bands of thugs against opposition supporters. However, the observers still considered whether or not to declare the elections free and fair because other factors appeared acceptable.
It is the contention of Elklit et al that elections must be viewed multi-dimensionally that begs further examination. They contend that elections must be judged on the various strengths or weaknesses exhibited in the various stages of the process. An election shouldn’t be looked at as good or bad or substantially free and fair; rather, what is good or bad about what part of it. They have also provided a framework for measuring the “freeness and fairness” of an election by introducing performance indicators such as acceptability, transparency and perceived impartiality of electoral bodies. Several questions emerge that are of interest to this study and will be discussed later. Can elections be considered free and fair despite shortcomings in the process? Should an election be considered not free and fair because a part of it was flawed even though it did not affect the final outcome? Should an election be judged based on process, outcome or both? How do these considerations affect the concept of free and fair elections? These questions become even more important as the decision of Kenya’s Supreme Court is analysed. The finding of the Court was that the election was free and fair yet an audit the Court ordered suo moto revealed discrepancies in the tallying process.
The paper by Elklit et al, discusses the quality of elections in general. Although it has drawn examples from countries such as Zimbabwe, it does not specifically address the Kenyan legal and institutional framework. This study will bridge that gap by borrowing some of the principles Elklit et al have discussed against the Kenyan constitutional framework to establish whether the Constitutional provisions on presidential elections facilitate free and fair elections.
One of the substantive texts this study examines is Goodwin-Gill’s book entitled “free and Fair Elections”. Gill analyses the Inter Parliamentary Union’s Declaration on Criteria for free and fair elections as well as other international and regional instruments and the developments in international practice. He also examines the developments in law and practice relating to implementation of the standard of “free and fair” elections. He formulates a categorisation of the tenets that ought to be established to ascertain the standard of elections into ten categories. These include the Electoral law and system; Constituency delimitation; Management of elections; Voting rights; Registration of voters; Dissemination of information to voters; Political parties system and organisation; Campaigns and protection of fundamental human rights; the actual balloting, tallying and results; and Complaints and dispute resolution. Gill cautions against a rigid approach to interpretation of the concept of “free and fair”. In his view, what was considered “free and fair” yesterday may not be so today or tomorrow. He attributes this fluidity of the principle to societal legal and socio-political environments.
Gill’s book is critical to this study because it summarises key tenets of free and fair elections as provided in the main international instruments. These tenets, he says, are also evident in established democracies. This insinuates that the principles have already been tried and tested in other countries and are not novel. This is important to this study because examples may be drawn from other jurisdictions to assist in contextualisation of the application of the principles.
Gill asserts that evaluation of electoral processes are somewhat subjective because they depend on sociopolitical environments in the various countries. In his view, the subjectivity of application of the principle makes its implementation at national level problematic. His finding makes this study critical because it seeks to analyse whether the Kenyan Constitution has implemented the principle in its constitutional framework. This study therefore draws from some of Gill’s free and fair indices and assesses Kenya’s implementation of the principle with respect to presidential elections.
This study is informed by A.A Adegboye’s article entitled, ‘Consolidating Participatory Democracy in Africa: The Challenges and the Way Forward’. In the paper, Adegboye admits that there is no definite definition of the term “democracy”. However, he broadly considers it as “a government of the people, by the people and for the people”. In his view, that presupposes participation in elections and governance, accountability of government, limited terms of the elected, free and fair elections and respect of the sanctity of the ballot. A democratic system must also ensure equity and fair play. He focuses on participatory democracy which is a process that emphasizes the broadest participation possible of constituents in political process. He posits however that several factors such as poverty, ethnicity, conflict, corruption, manipulation of political processes, ethnicity and tribal ascendancy and ignorance have undermined democracy in Africa. He makes several recommendations such as change of citizen’s attitudes which condone bad leadership and media intervention. Most important, though, is the recommendation that African countries must establish institutions and systems that support democracy. He recommends that institutions such as the judiciary and political parties be strengthened and a proper legal framework be put in place to support them.
Adegboye’s paper provides an “African perspective” to democracy in a way that has not been discussed in the other literature already reviewed. The paper is important to this study because it highlights the challenges undermining democracy in African countries . These challenges are not alien to Kenya and have been highlighted in the introduction to this study. The question remains why Africa continues to suffer from an uneven democratic terrain ten years after many of its states embraced democracy. The answer seems to lie in the recommendation that institutions and systems must be put in place to support democracy. This is a critical finding to this study because the study assesses the legal and institutional framework on presidential elections as provided in the Constitution of Kenya 2010.
Adegboye touches on the concept of consolidation of democracy which is important in emerging democracies such as Kenya. Consolidation of democracy refers to the process of diffusing democracy in a state. It concerns itself with sustenance of democratic states and their institutions. This suggests that there is need to deepen and sustain democracy. To appreciate the value of consolidation to this study, one must note that one of the reasons for electoral reforms in Kenya was to secure the gains of yester years and build on those democratic blocks. Assessing those reforms, is evaluating whether there is consolidation of democracy.
This study focuses on the Kenyan context and therefore breaks away from the general perspective on democracy consolidation in Africa. Adegboye takes a broad approach in his paper by questioning why African countries have weak democratic practices despite embracing democracy over a decade ago. This study, however, focuses on Kenya and particularly whether Kenyan constitutional framework on presidential elections facilitates free and fair presidential elections which is a democratic principle.
David Beetham, in his article, “Democratic Quality: Freedom and Rights” argues that without freedom, there cannot be democracy. In his view, a state cannot be said to be democratic if it doesn’t protect the freedoms necessary for democracy to thrive on an ongoing basis. Such freedoms include right to life, freedom of association and assembly and political rights. He adds that practice has shown that rights are best secured if they are enshrined in a constitutional bill of rights. He however, cautions that constitutional rights are as secure as the independence of the judiciary from the executive and therefore the independence of the judiciary must be emphasized. Beetham takes the view that democracy requires the active participation of the citizens especially when their rights are threatened.
Beetham’s linkage of democracy and rights is an important one to this study because this study emphasises the importance of political rights as the bedrock of elections. His emphasis on constitutional protection of the rights is in consonance with the argument this study makes that constitutional protection gives those rights importance and protects them from arbitrary amendments. This view coupled with the suggestion that the rights must be continually protected connotes a sense of democratic consolidation as posited by Adegboye in his paper.
A point of departure from Beetham’s paper is the fact that he provides a general overview of political rights and their importance while this study expounds on political rights as contained in Constitution of Kenya 2010. This study also uses international guidelines to assess whether the political rights in the Kenyan Constitution facilitate free and fair presidential elections.
Legal and Institutional Framework on Presidential Elections in KenyaAlexander Kirshner’s paper, “The International Status of the Right to Vote” will also be useful in this study when assessing political rights. The paper evaluates the right to vote provided in the UDHR and ICCPR as well as some American regional instruments. Kirshner conducted a survey of 119 democratic countries and found that 108 countries had provided for the right to vote in their legislative framework. The results of his survey confirm that democracy is widely legislated and accepted globally. He emphasised that constitutional protection of this right is important because it was an effective tool in compelling governments to facilitate the right. This paper shares the practice in various countries. It highlights decisions from the Supreme Court of Canada, European Court for Human Rights and South African Courts. Kirshner categorises Constitutions into four: Those that have no affirmative constitutional right to vote, those that provide generally for universal suffrage, those that provide general and independent right to vote and those that specifically provide for the right and also highlight government obligations in realisation of the right to vote. He refers to the last category as robust and gives the example of the Peruvian Constitution which makes it obligatory for citizens to vote until they reach the age of seventy. Thereafter, it becomes optional. He concludes by stating that many countries have embraced the right to vote and the challenge remains determining the impact of these provisions and their implementation.
Kirshner’s paper highlights the pivotal position of the right to vote in a democracy. This resonates with the assertion in this study that without the right to vote, any democratic election will be severely incapacitated and democracy itself will be jeorpardised. An important point of convergence is the limitations to the right to vote discussed by Kirshna. The paper has highlighted several limitations as they are applied in various countries. These limitations will be analysed in this study in the context of the Kenyan Constitution. Another important aspect of this paper is the categorisation of Constitutions based on the manner they provide for the right to vote. This categorisation, while not scientific, provokes debate on whether Kenya’s constitutional framework is conservative or robust. This classification has a bearing on the nature of recommendations made in the conclusion of this study.
Although informative, Kirshner’s paper has a few limitations. Firstly, it provides comparative data without making a clear finding on them. For example, he highlights examples on the limitations of exercise of the right to vote but fails to analyse whether they are necessary, good or bad. This study assesses the provisions on the right to vote from a Kenyan perspective and makes a finding on whether those limitations are necessary. Secondly, the paper focuses only on the right to vote. This study looks at the whole spectrum of political rights which include inter alia the right to form and participate in a political party. It also includes the right to present oneself as a candidate for elective office. Lastly, and which has been repeated, is the fact that Kirshner’s paper doesn’t focus on Kenya.
The book ‘Judging Elections by Public International Law: A Tentative Framework’ by Michael Boda, generally agrees with the position of Gill and Elklit et al. In his view, Gill reduces the international legal instruments provisions on free and fair elections into constituent principles that can be used to assess the ”freeness and fairness” of an electoral process. He adds that Elklit et al provide the “how” standards Gill’s book may be measured. Boda’s contribution to the ‘free and fair’ debate is to propose a mechanism of assessing indicators of what is meant by free and fair. To illustrate his approach, he uses obligations of result and obligations of conduct. Obligations of result are those constituent elements that are goals without clear processes on their achievement. For these kinds of obligations, Boda asserts that operational indicators must be developed to assess their presence or absence in an electoral process. Boda gives the right to vote as an example of obligations of result and highlights existence of a comprehensive and inclusive voter’s roll as the operational indicator. Obligations of conduct refer to constituent elements that provide mechanisms for their achievement. Boda gives an example of secret ballot which expresses the manner in which polling should be done.
Boda’s paper appreciates the importance of assessing whether an electoral process is free and fair and then proposes an alternative assessment model. His approach suggests that when evaluating obligations of result, an external standard must be applied. This validates the reliance on various authors and practices in other jurisdictions to assess some of the constituent elements of free and fair elections. Secondly, he emphasises the need to develop operational indicators to determine the quality of elections. This requires that specific processes should be examined and parameters developed to assess the processes. This study examines the presidential electoral processes as provided in the 2010 Constitution of Kenya through the lens of the 2013 and 2017 presidential elections to assess whether it facilitates free and fair elections.
It is noteworthy that Boda’s suggested approach to assessing the quality of electoral processes was criticised by electoral law experts such as Johann Kriegler and Michel Laflandre. In their view, the suggested approach does not consider factors such as campaigns which are extraneous to the actual electoral process. In that respect, caution is exercised in wholly adopting Boda’s findings.
Karuti Kanyinga and Duncan Okello have co-edited a book entitled “Tensions and Reversals in Democratic Transitions: The Kenya 2007 General Elections.” The book is a critique of the Kenyan 2007 general elections. They broadly question why despite regular multi-party elections in Africa for over a decade, democracy is yet to take root and mature. They opine that Africa’s first error was to fallaciously equate multi-party elections to democracy. This implies that many African governments cared only to have multiparty election without considering the quality of such elections. Kanyinga et al also blame poor legal and institutional frameworks. They argue that Kenya’s 2007 general elections deteriorated into violence against the backdrop of failed constitutional review projects which had sought to change the legal and institutional frameworks. To illustrate the impact of the poor legal framework, they posit that the old constitution had largely retained the single party character yet it was burdened with the responsibility to transition the country into a democracy. On institutional framework, they posit that the imperial presidency supported by retrogressive laws distorted the separation of powers making the legislature and judiciary subordinate to the executive. Other causes for the retarded democracy is attributed to ethnicity, lack of accountability and the governance systems. The book further discusses various aspects of the 2007 elections including the importance of governance reforms. The reforms include electoral reforms.
The book highlights some of the maladies that faced the Kenyan legal and institutional frameworks before the 2010 constitution. These are also highlighted in the introduction to this study. They are useful because they provide the context in which the constitutional reforms were conducted. They also provide justification on why some of the reforms were done and why the law had to be specific on certain matters. For example, independence of the electoral management body had to be emphasised in the constitution due to previous experiences where the electoral bodies were manipulated by incumbent presidents.
The book however is limited to the 2007 Kenyan general elections and does not cover the 2013 and 2017 elections under the new constitution. Further the book covers wide concepts such as role of the media, political parties and opinion polling while this study focuses specifically on whether the constitutional framework on presidential elections facilitates free and fair elections.
The Handbook on Kenya’s Electoral Laws and Systems published by Electoral Institute for Sustainable Democracy in Africa (EISA) provides a detailed account of legal reforms in electoral laws in Kenya brought by the 2010 Constitution. It highlights international laws that bind Kenya as well as constitutional and other legislation that touch on the Kenyan electoral system.
This Hand Book is one of the very few literatures available on the current Kenyan legal framework on elections. The book is a simplified codification of the electoral laws in Kenya. It emphasises the importance of establishing a legal and institutional framework governing electoral processes which are subjects of this study even though the scope is narrowed down to the constitutional framework on presidential elections in Kenya.
While the book is useful in highlighting the legal framework on elections in Kenya, it is mostly descriptive of the various laws including international instruments, the constitution and various statutes. Further, it provides little analysis on the application of the provisions. This study focuses on the Kenyan constitutional framework on presidential elections. It analyses the framework and makes a finding on whether it is facilitative of free and fair presidential elections.
Denis Petit’s paper entitled “Resolving Election Disputes in the OSCE Area: Towards a Standard Election Dispute Monitoring System” published by the OSCE is valuable to this study. The paper provides general guidelines on resolution of electoral disputes. It highlights the need for effective, fair, impartial, and timely processes in resolution of the disputes. Petit emphasises the need for independence of the institutions charged with such a responsibility. He recognises that dispute resolution may be the role of the judiciary of an electoral management body (EMB). He highlights six main principles that should guide electoral dispute resolution. These are: the right to the protection of the law and remedies for violations of their political and electoral rights; Entitlement to address political grievances within a competent jurisdiction; Prompt and timely redress of the grievances; Effective, impartial and independence of the judiciary or EMB according to the law; Right to appeal on the decisions made on electoral disputes and clear jurisdiction of the dispute resolution institutions.
The general principles suggested by Petit are used in this study to assess the constitutional framework on presidential dispute resolution mechanisms. The importance of these general guidelines cannot be over emphasised in view of the fact that there are no clear guidelines set on electoral dispute resolution in international legal instruments. Another critical point to note is that the paper establishes a clear nexus between the guidelines presented and the principle of “free and fair” which this study is hinged on. This study demonstrates that establishment and proper management of courts and legal systems are essential ingredients of democracy and absence of dispute resolution institutions render meaningless political rights. The idea posited here is that there is no use of having a right on paper where its realisaton cannot be enforced? Since political rights form one of the pillars of democracy, and courts are the main protectors of these rights, the guidelines must be given due attention.
It is noted that Petit’s paper proposes guidelines which do not have binding force. Does this negate their usefulness? The approach is to view them as emerging standards and are therefore useful to guide this study.
Ben Sihanya argues that the 2010 Constitution is both transformative and progressive. He posits that the Constitution was intended to address past challenges as well as “address future constitutional aspirations” of Kenyans. He addresses the centrality of elections in proper governance and argues that elections are at the core of not just governance but democracy. In this paper, he examines the legal framework on elections in Kenya and highlights key issues in presidential elections under the Constitution of Kenya 2010. He highlights about seven key issues that he considers pivotal in demonstrating the principles of accuracy, verifiability and accountability of an electoral system. He posits that these principles are enhanced by existence of good electoral laws that are implemented timeously and proper processes during voter registration, nomination, campaign and vote tallying. He also adds that each stakeholder in the election management process must play their part effectively to facilitate credible elections. He concludes the paper by proposing that proper implementation of the constitution would greatly contribute to the improvement in the electoral processes in Kenya.
Sihanya’s paper resonates well with the objectives of this study. Firstly, this study seeks to examine the constitutional framework on presidential elections in Kenya and ascertain whether the framework supports a free and fair election. This is briefly canvassed in Sihanya’s paper as he critically analyses some of the provisions of the Constitution of Kenya 2010 that are covered in this study. Secondly, he elucidates the key parameters that determine whether an election can be considered free and fair. Most of the parameters he lists are provided in Article 21 of the UDHR as well as the Constituion which are the focus of this study. It is noteworthy that the parameters he provides are broadly covered by other authors whose work has been reviewed in this study. A good example is Lindberg who emphasizes the linkage between good governance and free and fair elections and proceeds to list the principles that underpin free and fair elections to include political rights. Sihanya also briefly analyses some of the key decisions made by the Courts relating to electoral processes which are also key in this study.
While Sihanya’s paper has extensively covered the electoral framework from pre-election, election and post-election period, it doesn’t provide an in-depth analysis of the weighty issues the paper raises, rather, it serves to highlight the critical aspects. The paper appears to be part of a yet to be published book and perhaps the foundational principles may have been laid out in previous chapters.
Muthomi Thiankolu argues that the 2010 Constitution is more progressive and contains fairer and much more efficient dispute resolution mechanisms. He holds this view after analysis of a number of election petitions filed in Kenyan courts between 1963 and 2013. In his paper, he argues that the judiciary was viewed as biased towards the political elites. The courts did this by relying more on technicalities than merits of the cases before them. He points out the repressive nature of election petition processes such as the requirement for personal service of election petitions even to a sitting president. This coupled with patronage by judicial officers eroded public confidence in the judiciary as an arbiter of election disputes. It appears from Thiankolu’s paper that the judiciary had become an impediment to effective dispute resolution of election disputes.
Institutional foundations are important in the quest for credible elections. This study assesses the institutional framework on presidential elections including the Supreme Court of Kenya. It assesses whether the mandate, processes and jurisprudence by the SCK on presidential elections facilitates free and fair presidential elections. This is because, as Thiankolu also rightly points out, the Supreme Court has exclusive jurisdiction to hear presidential election disputes. Thiankolu’s paper provides a historical perspective on the legal framework on presidential dispute resolution and highlights the gains made in the Constitution. Those gains are also highlighted in this study.
Thiankolu assesses the Kenyan courts’ jurisprudence on election petitions in general since 1963. This study, however, narrows down to decisions that affect presidential elections since the promulgation of the new constitution. Further, this study also examines other decisions made by courts which affect the presidential electoral processes even though they are not necessarily election petitions. A good example is the Supreme’s Court Advisory Opinion No. 2 of 2012.
Justification of the StudyThe literature reviewed in this study have demonstrated the importance of democracy and free and fair elections to a state. However, there have been certain gaps identified in the literature review which necessitate this study. Firstly, there is barely any literature reviewing whether the Kenyan constitutional framework on presidential elections complies with the standards of free and fair elections. Most of the literature available on the subject was written before the new constitution and examined the general legal framework. Furthermore, very little literature that touch on the 2017 elections in Kenya is available. This study therefore, is important because it examines the 2010 constitutional framework and focuses on presidential elections. Secondly, the constitutional framework on presidential elections has now been tested in the 4th March 2013, 8th August 2017 and 26th October 2017 elections and little has been published to interpret the constitutional provisions as against their implementation in these three elections. The value of this study may be summarised as follows:
It offers a one stop shop to anyone who would like to appreciate the existing constitutional framework on presidential elections in Kenya.
It assesses the constitutional framework on presidential elections in Kenya through the prism of the 4th March 2013, 8th August 2017 and 26th October 2017 elections.
It assesses whether the Kenyan constitutional framework on presidential elections facilitates free and fair elections according to generally accepted international standards.
It contains critiques on the presidential elections jurisprudence from the Supreme Court of Kenya from promulgation of the Constitution to date.
It makes recommendations on key reforms to be undertaken to enable the constitutional framework on presidential elections in Kenya meet international standards on free and fair elections.
The electoral process of presidential elections has been preferred as the subject of this study for three reasons: firstly, the presidency is the highest political office in the Kenyan constitution; Secondly, the presidential elections attract the participation of a wider scope of voters; Thirdly, the executive power of the state vests in the president which weights the presidency over other political offices.
MethodologyThis study will take the format of desk based research and will be library based. It will rely on both primary and secondary sources. The principal primary source that will inform this study is the Constitution of Kenya and the Universal Declaration on Human Rights. Additional reference include Acts of Parliament such as the Independent Electoral Boundaries Commission Act, the Supreme Court Act and the Elections Act. The secondary sources include books, articles, journal publications research papers and other scholarly works that have been published on the various relevant thematic areas.
This approach to research was used because of limited resources which would have been necessary to carry out field research.
Limitation of the StudyIn the conduct of this research, a number of limitations have been identified that any reader of this work ought to be alive to. Firstly, there isn’t a lot of literature that analyses the constitutional framework on presidential elections through the prism of the three presidential elections we have held under the Constitution of Kenya 2010. Closely linked to this concern is the onerous and costly processes required in amending the Constitution in cases where amendments are recommended. Thirdly, implementation of the constitutional framework depends on political goodwill of those in power. This means that a good constitutional framework may not necessarily receive the political impetus required for citizens to enjoy its benefits.
The study has taken the approach that any recommendations made for amendment to the Constitution are those that an amendment in statutes would not satisfy. Secondly, the study makes recommendations to invoke further debate on resolution of the challenges identified in the legal and institutional framework on presidential elections. Thirdly, the recommendations are made to inform future amendment efforts.
The study will have a total of five chapters partitioned as follows:
Chapter 1 -Background to the Study
This chapter comprises of an introduction and a layout of the study. It includes an introduction, background to the study, statement of the problem, scope of the study, conceptual framework, research objectives and questions, literature review, hypothesis, justification of the study, methodology used in the study and lastly, the chapter breakdown.
Chapter 2- Definition of the Concepts of Democracy and Free and Fair Elections
The chapter will discuss the various definitions of democracy and free and fair elections. It also highlights the important tenets of the two concepts as per the Constitution and other international legal instruments such as the UDHR and ICCPR and the Declaration on Criteria for Free and Fair Elections.
Chapter 3- Analysis of the Constitutional Framework on Presidential Elections
The chapter critically analyses the constitutional framework that governs presidential elections. The Chapter adopts the constituent elements of free and fair elections provided in Chapter Two such as voting rights, civic education, elections management and dispute resolution. The chapter concludes with a finding as to whether the constitutional framework facilitates free and fair elections.
Chapter 4- Conclusion and Recommendations
The chapter discusses the findings of the study on whether the constitutional framework on presidential elections facilitates free and fair elections. Recommendations will also be made to address the gaps identified in the study.
CHAPTER TWO – DEFINING FREE AND FAIR ELECTIONS”Democracy, it has been said, is everybody’s mistress: swindler and saint alike fight for her favours. However it would be a mistake for us to think that this is a fight over the meaning of a word. It is a deeper quarrel regarding what government should be considered legitimate and what should be considered illegitimate.”
The objective of this study is to examine whether the Kenyan constitutional framework promotes free and fair presidential elections. In order to make a finding on the objective, it is important to examine the standard the study will adopt in evaluating the said constitutional framework. It is for this reason that this chapter expounds on the various definitions and descriptions of the terms ‘democracy’ and ‘free and fair elections’. These standards and description are drawn from various authors, the Kenyan Constitution and international legal instruments. The legal provisions are discussed because they lay a justiciable basis for the concept of free and fair elections. This chapter also highlights the tenets of democracy because the concept of free and fair elections rests on the foundation of democracy. The chapter concludes with the salient features of the concept of free and fair elections.
The salient features identified in this chapter of the two concepts (democracy and free and fair elections) will form the basis of assessing political rights in chapter three, the legal and institutional framework in chapter four and the recommendations in chapter five of this study.
DemocracyDemocracy has been defined differently by different scholars. A number of scholars hold the view that several indices are used in different contexts making the concepts easier to identify rather than define. Democracy derives from the Greek word “demos”, which means people. Several definitions have been ascribed to democracy. It has been defined as government by the people, either directly or through representatives. It has also been defined as a regime in which the Constitution allows for peaceful rivalry for the exercise of power.
Bernard Lewis defines democracy as a system of appointing state leaders who may be dismissed and replaced without violence. The leaders are dismissed and replaced through a legally recognised process which must be universally understood and accepted. James Danziger defined democracy as a system of governance where leaders are given a limited mandate by the general polity. The leaders are selected from different political parties. Samuel Finer understands democracy to mean the rule by the people but adds that there is need to protect the minorities who may suffer as a result of majority rule. Michael Saward posits that democracy includes popular rule and participation, competition in elections, equality of the adult polity, protection of freedoms, competition, pluralism and lack of coercion, constitutional rule amongst others. He then argues that since different authors have isolated different sets of principles to overarch democracy, the sensible approach to defining it is to adopt general principles as basic guidelines. He agrees with Beetham that the main characteristics of democracy are popular control and political equality.
Political rights have been considered critical in democracy by various scholars. Amatrya Sen underscores the importance of protection of liberties and freedoms such as freedom of speech, assembly and association. Beetham argues that democracy cannot be separated from rights. In his view, democracy depends on the protection of rights that facilitate its subsistence such as political rights, freedom of association, assembly and the right to life. Adegboye posits that democracy will be consolidated in a state which encourages the broadest political participation of its citizens. Kirshner adds his voice to the rights-democracy debate by emphasising the importance of the right to vote in democratic states and urging that the right to vote ought to be constitutionally protected. In his view, such protection compels governments to facilitate the right. In addition to the protection of political and civil liberties, equal treatment of all citizens constitutes another essential characteristic of democracy. Since all people in a democratic state are assumed to be intrinsically equal to each other, they should be provided with equal opportunities to voice their opinions and to participate in the political process. It is in this regard that gender equality and rights of persons with disabilities are considered as crucial goals in building democratic institutions.
The definitions postulated have certain converging points: democracy as popular control, leaders as representative of the people with limited mandates, universal and equal suffrage and peaceful removal of leaders through legal means. However, there are also divergent points such as Finer’s notion of minority rights, Danziger’s concept of allowing opposition to flourish and Lewis’ view that the guiding principles must be universally understood and accepted. The pattern drawn by the definitions shows that the primary tenet of democracy is rule by the people. This is well captured in the words of Reisinger as follows:
“The basic sense of democracy as a form of governance rests on its etymology as rule by the entire people rather than, as Shapiro puts it, by any “aristocrat, monarch, philosopher, bureaucrat, expert, or religious leader.” Beyond that, actual definitions of democracy come in all shapes and sizes.”
This also resonates well with the quote at the beginning of this chapter by Wachira Maina who opines that there is a continuous debate as to the constituent elements of democracy.
While democracy has been widely celebrated, Plato and Socrates criticised it quite poignantly. In their view, a philosopher king was better equipped to rule because philosophers had knowledge and were concerned with the wellbeing of the souls of men. To appreciate their argument better, Matt has stated as follows:
“… it is suggested that a rhetorician would be more capable of persuading a crowd of ignorant people on the subject of health than even a doctor… This was something that Friedrich Nietzsche noted: “Insanity in individuals is something rare – but in groups, parties, nations and epochs, it is the rule.” Even today, we hear the words of those who proclaim they have wisdom in areas they have no expertise in. Though this may seem contradictory by default, it pays to not underestimate the ignorance of the populace at large, particularly when normally skeptical and rational individuals are swayed into thinking along with the group.”
According to Plato and Socrates, ignorant masses were susceptible to manipulation by orators and therefore did not necessarily make wise decisions. In their view, popular participation was not a good governance model. Other critics question the notion of human equality. Lee Kuan Yew, a former Prime Minister of Singapore, has questioned the rationale of the principle of equal suffrage. He argues that men at the age of 40 to 65 with families and children should have two votes as compared to capricious youngsters since they are not only making a decision for themselves but also for their children.
Despite the criticism, democracy remains the preferred form of governance because people value individual liberties and the freedom to choose leaders to drive their development. From the various definitions, the following emerge as the main indicators of democracy:
Rule by the people directly or through freely chosen representatives;
Citizens have a right to vote and to be elected to any elective public office;
Presence of genuine periodic elections by universal suffrage through secret ballot;
Equal treatment of citizens;
Citizens have a right to form or join and participate in activities of political parties.
Free and Fair ElectionsThe concept of free and fair elections is considered so important in democracy. The absence of free and fair elections in a country may lead to a conclusion that a state is undemocratic. Quite a sizeable number of countries that allegedly practice democracy and hold elections do not necessarily produce credible results. For example in some countries, the deceased “cast ballots” from the grave, children’s names appear on electoral rolls, ballot boxes “disappear” into thin air, and candidates are arrested or killed. In Kenya, ethnic violence has been used by some as a means to scare away voters . Such practices undermine the fairness and credibility of the polls and consequently affect the quality of democracy. The writer agrees with the view that absence of freeness and fairness in elections rob them of democratic value. As stated in the literature review in Chapter One, elections are not of themselves equal to democracy neither do they translate into opportunities to the polity to choose their leaders unless they are looked at through the prism of how free and fair they were.
According to the Oxford English dictionary, the word “free” may refer to the ability to act as one wishes, not being under the control of another or with reference to a state, “not being subject to foreign domination or despotic government.” On the other hand, the word fair refers to treatment of people equally without any form of favouritism or discrimination. According to Gill, in the context of an electoral system, “free” refers to participation and choice while “fair” refers to allowing people an equal opportunity to participate and vote in elections. He further posits that an electoral system should be impartial and non-discriminatory. Jorgen Elklit et al consider the concept of “fairness” as impartiality. In their view, fairness includes both regularity in unbiased application of rules, and reasonable distribution of resources. Walecki considers fairness as “a level playing field” where the following are present:
a transparent electoral process;
equal opportunity for political parties and independent candidates to contest in elections;
legally regulated electoral campaigns;
parties and candidates having equal access to the publicly controlled media;
equitable funding of political parties and the prevention of misuse of government resources.
Sihanya proposes seven indicators that “underline the accuracy, verifiability and accountability of an electoral system, method and process in Kenya.” These tenets of measuring the quality of elections are in consonance with Article 21 of the UDHR, Article 81 of the Constitution of Kenya 2010 as well as the position taken by the Inter Parliamentary Union. In his view the quality of elections will be determined by the legal framework which must be adopted in good time, voter registration, nomination processes, campaign processes, election management, proper tallying and results dissemination and finally transparency of the processes. These indicators are also echoed by the IPU and will form part of the criteria this study adopts in determining the quality of presidential elections as provided in the Constitution of Kenya.
Gill cautions against a static approach to the definition of the concept of “free and fair” because it has no easily verifiable content. He opines that what was “free and fair” yesterday may not be so today or tomorrow because of societal, legal and socio-political environments. This view is also echoed by Richard Rose who argues that consolidation of a democratic system is highly dependent on the political and social orientations of its citizens. In Gill’s view, this contributes to the challenges in implementing international standards at national level.
Bjornlund also cautions that the concept of “free and fair” has been unduly simplified resulting in its dilution. He considers the concept as inherently complex due to the multiplicity and conflict of factors that lead to its determination. In his view, an election will always be flawed and he questions whether minor flaws should negate the entire electoral process. Bjorlund’s view draws a picture of the inherent dilemma in judging electoral outcomes. An example is the recent Zimbabwean elections which were declared free and fair by the African Union Observers despite massive irregularities. In certain instances, polling stations registered an unusual number of illiterate individuals who were assisted by electoral officers. Curiously, they voted overwhelmingly for President Mugabe. How does one deal with such irregularities, yet they appear to have been conducted within the law? Elklit et al seem to have an answer to this dilemma. They argue that the concept of “free and fair” should be viewed multi-dimensionally. They contend that elections must be judged based on the various strengths or weaknesses exhibited in the various stages of the process. In their view, the assessment process should be segmented by looking at what is good or bad about the different aspects of the process using objective standards. They provide an example of the 2002 general elections in Zimbabwe declared as free and fair yet the same observers confirm it was marred by blatant irregularities. This, Elklit et al contend, is due to lack of clear measuring tools in determining the freeness or fairness of an electoral process. They suggest that the following be examined to determine freeness or fairness of elections: legal framework, election management, constituency demarcation, voter education, voter registration, access to ballot, campaign regulation, polling, counting the ballots, resolution of electoral disputes and post-election procedures.
The approach taken by Elklit et al appears easier to grapple with because it segments the process. The challenge, however, is that ultimately, an opinion must be made as to the quality of a particular election.
Legal Framework on the Concepts of Democracy and Free and Fair Elections.The Constitution of Kenya 2010Article 1(1) and (2) of the Kenyan Constitution provide as follows:
“(1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.
(2) The people may exercise their sovereign power either directly or through their democratically elected representatives.”
Article 81 of the Constitution expresses the principles upon which the electoral system of the country should comply with. These are:
Citizens should be able to exercise their political rights provided under Article 38 of the constitution;
Not more than two-thirds of the elected officials shall be of the same gender;
Fair representation of persons with disabilities;
Universal suffrage based on the aspiration for fair representation and equality of vote; and
Free and fair elections conducted through secret ballot, transparently and impartially administered and free from violence and undue influence.
The Kenyan Constitution also provides for political rights which include the right to free and fair elections.
Sihanya commends the 2010 Constitution as being progressive and transformative particularly in view of the chequered political and constitutional history in the country. This is also echoed by Ongoya et al who commend the electoral reforms brought about by the 2010 Constitution. In their view, the 2010 Constitution is progressive because it has consolidated the hitherto scattered electoral laws, addressed electoral challenges since independence, made specific provision for political rights and also introduced international instruments and general rules of international law. The Constitution of Kenya 2010 has also been celebrated for laying down the principles that Kenya’s electoral system should conform to including free and fair elections. Does this mean that the 2010 Constitution facilitates free and fair elections? Yash Pal Ghai has argued, and rightly so, that a flowery constitution is only useful if its ideals are adhered to. Sihanya holds a similar view when he concludes that the reversal and delay in enjoying the benefits of the 2010 Constitution are as a result of lack of political goodwill by those in power to implement the Constitution.
The Constitution is the supreme law of Kenya and any law inconsistent with it shall be void to the extent of the inconsistency. This means that any law applicable in Kenya must align itself to its provisions. Article 2 (5) of the Constitution provides for the application of general rules of international law while Article 2(6) provides for the application of international legal instruments ratified by Kenya. Some provisions on democracy and free and fair elections from international and regional instruments ratified by Kenya are highlighted below.
Universal Declaration of Human Rights (UDHR)The UDHR was adopted by the General Assembly of the United Nations on 10th December 1948. Article 21 provides as follows:
“(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right to equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
Article 21 of the UDHR has been hailed for setting a foundation for democratic principles. Although not a treaty per se, the the UDHR has been considered as customary international law due to its wide application in many nations across the globe. The article provides for individuals’ right to participate in the government of their respective countries. The participation shall be done implicitly through elections or referenda and may be direct or through freely chosen representatives. The elections must be periodic and by way of secret ballot. Universal and equal suffrage refers to extension of the right to vote to citizens. It demands that every person shall have one vote which shall be counted only once. Secret ballot on the other hand means that only the voter knows how he or she has voted. The idea is to protect citizens from unnecessary intimidation. Regular or periodic in reference to elections, means holding elections on a set schedule which may be on a specified date or within a specified time frame. Article 21 of the UDHR has been reiterated in various international, regional and national legal instruments such as the ICCPR, ACHPR and the Constitution of Kenya 2010.
International Covenant on Civil and Political Rights (ICCPR)The ICCPR also echoes the rights provided in Article 21 of the UDHR. It provides as follows:
“Every Citizen shall have the right and opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
(b) To vote and be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public services in the country.
Kenya acceded to the ICCPR on 23rd March 1976 and it is therefore binding upon the country by dint of Article 2(6) of the Constitution. The ICCPR was born out of the need to translate civil and political rights into a binding international treaty as opposed to guiding principles as was the case with the UDHR.
African Charter on Human and Peoples Rights (ACHPR)The ACHPR was adopted on 27th June 1981 and came into force on 21st October 1986. Kenya ratified this treaty in 1992. It provides as follows:
“(1) Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with provisions of the law.
(2) Every citizen shall have the right of equal access to the public service of his country
(3) Every individual shall have the right of access to public property and services in strict equality of all persons before the law.”
The ACHPR was adopted in order to promote and protect human rights and basic freedoms in the African continent. The African Commission on Human and Peoples’ Rights was set up to oversee implementation of the ACHPR in Africa. In 1998, A protocol to the Charter was adopted which set up the African Court on Human and Peoples’ Rights. The mandate of the Court is to monitor implementation of the ACHPR and adjudicate over cases of violation of the ACHPR.
Declaration on Criteria for Free and Fair ElectionsThe Inter-Parliamentary Union (IPU), for which Kenya is a member, issued the Declaration on Criteria for Free and Fair Elections (DCFFE). The Declaration sets out the salient features every Member of Parliament should implement to facilitate free and fair elections in their respective states. It is noteworthy that the IPU has 173 Members of Parliaments and 11 Associate Members. Further, the Declaration also acknowledges the importance of the UDHR as well as ICCPR. The declaration was unanimously passed during IPU sitting in 1994. It is the author’s considered view that the two factors mentioned above are important because they influence the level of importance that the author and others have placed on the Declaration. Article 1 of the DCFFE provides as follows:
“In any State, the authority of the government can only derive from the will of the people as expressed in genuine, free and fair elections held at regular intervals on the basis of universal, equal and secret suffrage.”
This is in line with Article 1 of the Constitution of Kenya and Article 25 of the ICCPR. The DCFFE prescribes the various tenets of a free and fair elections. These cover voting rights such as right to register as a voter and equal access to polling stations. It also speaks to the right of an individual to vie for political office, equal treatment in campaigns and state security. Additionally, the DCFFE expressly places responsibility on the state to ensure that the rights relating to free and fair elections are facilitated except for “restrictions of an exceptional nature which are in accordance with the law and reasonably necessary in a democratic society in the interests of national security or public order.
Gill has analysed the DCFFE as well as other international instruments on the concept of free and fair elections. He categorized the constituent elements of free and fair elections as provided in the international legal instruments into ten. These are:
The Electoral law and system;
Management of elections;
Registration of voters;
Dissemination of information to voters (civic education);
Candidates political parties system and organisation;
Campaigns and protection of fundamental human rights;
The actual balloting, tallying and announcement of results; and
Complaints and dispute resolution.
These are the tenets that this study adopts in evaluating the Kenyan constitutional framework on presidential elections.
ConclusionDemocracy and the concept of “free and fair” elections have gained near universal acceptance and are encapsulated in various international, regional and national legal instruments . These include but not limited to the UDHR, the ICCPR and the ACHPR. The concept is also enshrined in the Constitution of Kenya, 2010. This chapter has demonstrated that democracy concerns itself with popular control which is mainly exercised through elections and referenda. The Chapter has also shown that elections on their own are not good enough. They must be free and fair for it to be said that a state is democratic. Authors such as Elklit, Gill and Bjorlund confirm that the concepts of democracy and free and fair elections are multi-faceted concepts comprising of varying and sometimes shifting tenets. Despite the apparent contentions in their definitions, popular control and political equality appear to be generally acceptable constituent elements of democracy.
The concept of free and fair elections has been discussed in this chapter. The study has adopted the provisions of the DCFFE as the guiding elements of the concept such as: periodic and genuine elections, elections conducted by secret ballot; universal suffrage; electoral processes such as polling, counting of ballots, tallying of votes being conducted in a transparent manner; equality, efficient electoral dispute resolution mechanisms and free exercise of political rights such as right to vote, vie for public office and participation in political parties.
The introduction to this study has shown that Kenya’s presidential electoral history is replete with electoral malpractices which necessitated legal and institutional reforms. The push for reforms culminated in the promulgation of the Constitution which brought a raft of reforms in the presidential electoral processes. This study assesses whether the Constitutional framework facilitates free and fair presidential elections and will therefore apply the constituent elements of democracy and free and fair elections in its assessment of the constitutional framework.
This chapter has also highlighted the pivotal role of political rights in democracy. Scholars such as Beetham, Gill, Lindberg, Adegboye and Kirshner have underscored this importance. Their main argument is that democracy may be an illusion in the absence of political rights. This study therefore, in the next chapter, examines the political rights provided in the Constitution of Kenya 2010 to establish whether they facilitate free and fair presidential elections in Kenya.
CHAPTER THREE: ANALYSIS OF THE CONSTITUTIONAL FRAMEWORK ON PRESIDENTIAL ELECTIONS
Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual).
Successful presidential electoral processes largely depend on conducive legal environments and institutional foundations. This means that laws and institutions tasked with electoral process responsibilities should ensure that free and fair elections can be conducted. This study began in Chapter One by highlighting the weak legal and institutional framework of the presidential electoral process in Kenya since independence. It contended that the legal and institutional framework then in place was weak resulting in electoral malpractices which robbed the elections of their credibility. Chapter Two examined the conceptual elements of democracy especially free and fair elections. It offered important guidelines in assessing the quality of the presidential electoral process.
This chapter evaluates the constitutional framework in Kenya against the indicators of free and fair elections listed in Chapter Two. The analysis will be done under the following thematic heads:
The Electoral laws and systems;
Management of elections;
Registration of voters;
Dissemination of information to voters (civic education);
Political Parties system and organisation;
Campaigns and protection of fundamental human rights;
Balloting, tallying, announcement of results; and
Complaints and dispute resolution.
Electoral Laws and systemElectoral lawAccording to the Institute for Democracy and Electoral Assistance (IDEA) Guidelines, the term “legal framework for elections” generally refers to the following:
“the applicable constitutional provisions, the electoral law as passed by the legislature and all other laws that impact on the elections. It also includes any and all regulations attached to the electoral law and to other relevant laws promulgated by government. It encompasses relevant directives and/or instructions related to the electoral law and regulations issued by the responsible EMB, as well as related codes of conduct, voluntary or otherwise, which may have a direct or indirect impact on the electoral process.”
There are various laws that govern elections in Kenya. The Constitution of Kenya 2010 claims supremacy and any law inconsistent with it shall be void to the extent of the inconsistency. This means that any law applicable in Kenya must be viewed through the lens of the Constitution. Other laws include regional and international instruments as well as Acts of Parliament. The international instruments and general rules of international law apply in Kenya by virtue of Article 2 (5) and (6) of the Constitution.
While a country is at liberty to pass its own laws based on its history and the will of its people, these laws ought to generally adhere to internationally prescribed standards. Sakuntala Kadirgamar-Rajasingham adds that the internationally agreed standards are those contained in international instruments. Legislation need to cover pre-election processes, actual elections as well as dispute resolution processes. Sihanya underscores the importance of not just having an acceptable electoral law, but one that is enacted and implemented in time. This is further echoed by ELOG who observed that it is critical for laws to be enacted and implemented in time . This can be contrasted to the 2017 elections where a number of laws were changed less than Twelve (12) months to the elections. The laws introduced various far reaching amendments including the use of technology in the voter identification and tallying process. This resulted to multiple court petitions by Parties that felt aggrieved. The introduction of new laws close to an election negatively impacted on the preparations of the 2010 and 2017 elections. It therefore follows, in the author’s view, that it is important to have a legislative framework that at least covers the wider election management process. The legislation must be implemented in good time. It should incorporate the principles in the UDHR, ICCPR, and DCFFE. These are widely recognize and accepted principles by virtue of their adoption by a majority of the countries.
According to IDEA Guidelines, a legal framework must be clear, unambiguous, understandable and transparent. The IDEA Guidelines distinguish between general and specific legislation. General legislation refers to an Act or other codified law enacted to address issues not necessarily related to electoral processes. Specific legislation refers to separate laws enacted which contain provisions specific to electoral institutions and processes. The preferred model under the IDEA guidelines is a unified law which encompasses all electoral laws. The justification for the preference is that a unified law is easier to amend as opposed to making amendments across many pieces of legislation. Kenya has adopted a mix of specific legislation and general legislation. The general legislation is found in the Constitution which provides for laws on other issues. The specific legislation is evident in the Elections Act, Political Parties Act and IEBC Act which deal with specific aspects of the electoral process. Highlights of other relevant laws in this study are provided below. The analysis will follow towards the end of this chapter.
The Independent Electoral and Boundaries Commission (IEBC ) Act
This Act was assented to and came into force on 5th July 2011. The IEBC Act is anchored on Article 82 and 88(4) of the Constitution. Article 82 expressly obligates Parliament to enact laws to deal with various electoral issues such as boundary delineation while Article 88(4) provides that there will be an Act of Parliament that regulates the functions of the IEBC. The Act provides for appointment and effective operations of the IEBC. The IEBC Act is important in the presidential electoral process because it sets out the mandate, functions and operations of the IEBC. The IEBC is the body mandated with electoral management in Kenya. The IEBC’s role shall be discussed and analysed within the context of the management of electoral processes in Kenya.
The Elections Act, 2011
The Elections Act was assented to on 27th August 2011 and came into force on 2nd December 2011. It was enacted pursuant to Article 82 of the Constitution which provides for enactment of laws to facilitate efficient management of elections and referenda. The Act contains provisions on presidential, senatorial, gubernatorial, county representatives and county assembly elections. It appears to be an amalgamation of previous electoral laws. The previous legislative frameworks included the National Assembly and Presidential Elections Act, Electoral Offences Act and parts of the Societies Act. The rules and regulations developed under the Act are also critical in elaborating the various electoral processes.
The Political Parties Act (PPA), 2011
Article 92 of the Constitution obligates Parliament to enact laws on the following:
Regulation on use of media by political parties and candidates;
Formation and supervision of political parties;
Establishment and management of a political parties fund;
Accounts and audit of political parties;
Any purpose connected to management of political parties.
These matters are provided for in the PPA which came into force on 1st November 2011. Before enactment of the PPA 2007, political parties were regulated by the Societies Act. The enactment of a specific legislation to regulate political parties is progressive because it shows that political parties have been recognised as important institutions that require specific legislative attention.
Other important laws regulating presidential elections in Kenya include the Supreme Court Act and the Supreme Court (Presidential Elections) Rules. Part III of the Supreme Court Act provides for the Court’s jurisdiction to entertain presidential election petitions.
Election Offences Act, 2016 (EOA)
The EOA was assented to on 13th September 2016 and came into force on 4th October 2016. This was slightly less than one year to the general elections of 8th August 2017. The purpose of the Act is to provide for election offences. The Act provides for various offences in the electoral process. The election offences provided for are those that relate to registration of voters, voting, engaging in violence during elections, misuse of public resources and unlawful expenditure. The Act provides that non-exempted employers shall allow reasonable time to their employees to go and vote. Failure to do so amounts to an offence and carries a maximum penalty of One million Kenya Shillings or Six years imprisonment or both. The Act also mandates the Chief Justice to appoint special magistrates to hear and determine these cases.
Election Campaign Financing Act, 2013
This legislation was enacted in 2013 with a commencement date of 10th January 2014. However Parliament in 2017, through Act No. 1 of 2017, suspended operation of the Act until immediately after the General Elections of 2017. The purpose of the Act is to regulate and manage expenditure of elections or referenda campaign funds. The Act prescribes the manner in which parties and candidates can receive and spend funds for the various campaigns. For example, the Act prescribes acceptable sources of funds and prohibits use of public resources in support of any candidate. The Act promotes accountability of campaign resources and provides for disclosure of funds received and expended. The Act further mandates the IEBC to gazette rules on expenditure limits as well as non-paid up media coverage at least Twelve months before the next election.
The electoral legal framework contains several Rules and Regulations which are enacted pursuant to the provisions of the relevant Acts and the Constitution. Some of the Regulations that have a bearing on presidential elections in Kenya include;
Elections (Registration of Voters) Regulations, 2012
Elections (Party Primaries and Party Lists) Regulations, 2017 (Kenya Gazette Supplement No. 62) 21/4/2017
Elections (Voter Education) Regulations, 2012 (Amended in 2017)
Elections (Technology) Regulations, 2017 (Kenya Gazette Supplement No. 61) 21/4/2017
Elections (General) (Amendment) Regulations, 2017 (Kenya Gazette Supplement No. 64) 21/4/2017
Elections (General) Regulations, 2012 (Amended ixn 2017)
Rules of Procedure on Settlement of Disputes, 2012
Supreme Court (Presidential Election Petition) Rules, 2013
Most of the Acts of Parliament and respective Regulations on the electoral process have been enacted pursuant to express constitutional provisions such as Article 82 and 88(4). These laws cover critical areas of the electoral process. This therefore leads the author to the conclusion that the Kenyan Constitution has laid a broad framework that is generally facilitative of free and fair presidential elections in Kenya. This view is further emboldened by the chequered political history of the Country where blatant electoral malpractices characterized elections.
Electoral systemThe system of representation employed by a country is critical because it affects the allocation of power among geographical regions and also contending interests. The Kenyan Constitution has adopted a predominantly “first past the post” electoral system where the one with majority votes wins. However, a presidential candidate must garner more than half the votes and at least twenty-five percent votes cast in at least more than half of the counties to be declared president.
Questions have emerged on the ability of the electoral system adopted by the Constitution of Kenya 2010 to foster free and fair elections in Kenya against the backdrop of highly ethnicised politics. The concerns arise from the fact that whereas the composition of political parties constitutionally envisaged should reflect the diversity in the country, in kenya, political parties are centralized on tribal affiliations. This appears to be in consonance with Rose’s view that consolidation of a democratic system is highly dependent on the political and social orientations of its citizens. For instance, in the March 2013 general elections, it appeared that party coalitions were formed on tribal lines with two out of about forty two ethnic blocks joining hands to win the elections under the Jubilee coalition. Instead of fostering democracy which requires the rule by majority, in an ethnically polarized nation like Kenya, the electoral system applied in the 4th March 2013 presidential elections technically resulted in the rule by the minority (two tribes). The context in which this must be understood is that although the two or so ethnic groups have large numbers by reason of their huge populations, they end up imposing leaders on forty other ethnic communities through what some writers have referred to as the tyranny of numbers. The upshot is that the current Kenyan electoral system does not foster democracy and consequently free and fair elections. To facilitate free and fair elections, an electoral system ought to enable the majority to control the government while also safeguarding the minority from being overwhelmed by the majority.
South Africa has suffered from political inequalities and divisions in its past. This resulted to white minority oppressing the majority consisting of other races. In 1996, South Africa adopted a new constitution with one of the objectives being to heal the past racial divisions, establish democratic ideals, social justice and protect fundamental rights. Against this background, the South African Constitution settled for an arguably semi-parliamentary system in which the president is elected by the popularly elected lower house of the bicameral legislature as opposed to direct election by the people This is provided for in Article 86 of that constitution. Under the system, the President ceases to be a member of the National Assembly once elected.
The South African electoral system has been faulted, firstly, as non-democratic. This is because of the prevailing dominance by the African National Congress Party in national elections. The Party and its coalition organisations’ dominance has been attributed to the involvement of the Party’s members in the struggle to end apartheid. This has resulted to minimal political competition for the Party in the National Assembly; consequently, African National Congress presidential candidates have ruled South Africa since its independence in 1994. Secondly, the system is perceived to result in a weak presidency especially where the incumbent is eligible for a further term. The argument is that the President is under Parliament’s firm control and is likely to do what suits the Legislature in a bid to win its support for the second term. For the latter reason, the South African presidential electoral system has been considered only suitable in the context of a one term presidency environment. This has been considered a major weakness of all parliamentary systems.
In the United States of America (USA), the president is elected by a college of electors. Under Article II of the USA Constitution, each State is required to appoint a number of Electors which should be equal to the number of Senators and Representatives to which each of the states may be entitled in the Congress. It precludes Senators, Representatives, person holding Offices of Trust or Profit. The American Constitution provides that the Electors shall meet and vote by ballot for the president and vice president. All the certificates and the votes shall then be counted by the president of the Senate in the presence of the Senate and House of Representatives. The candidate with the majority votes shall become the president. In case no candidate emerges with majority votes, Senate will vote with each State having one equal vote. The candidate that emerges the winner will be declared the winner.
The American Electoral College system has been celebrated for contributing to cohesiveness through requiring popular support, enhancement of the minority interests and its contribution to political stability by encouraging a two party system. The system has also been criticised on various grounds including, equating votes in the various states, having few votes decide the presidency, unbound electors who are under no obligation to vote according to respective State polity positions.
What lessons can Kenya borrow from the two countries (South Africa and USA)? Kenya can borrow from the American Electoral College system by implementing a similar system. The inherent strengths in the electoral college system lies in equality of votes, enhancement of minority rights which could assist to a great extent in resolving the highly ethinicised political environment in Kenya. The President and Deputy President would be elected by an electoral college; not directly by voters and avoid large political groupings dominating the minority through the infamous tyranny of numbers. More importantly, it will enhance democracy (popular rule) and enhance the equal right to vie for political office.
To better understand the lessons Kenya can learn from the USA presidential electoral system, Amukowa and Jeremiah Atancha posit that one must understand why the USA settled for such a system. They posit that the system was adopted when the USA faced a dilemma of how to ensure equality in voting rights between large and small states. The large states wanted to retain their political power, while the small states felt their vote would never count because of their numerical disadvantage. The USA needed a presidential electoral system that would limit the possibility of the large American States determining presidents while disregarding the small states. Amukowa et al find similarities in the ethnic problem facing Kenya and that of the large versus small states in the USA. In their view, such a system is needed in Kenya to ensure that presidential candidates with populous ethnic following do not solely rely on their ethnic patronage for electoral victory. This, it appears, will enhance democracy as well as equal right to vie for presidency. This is because persons from non-populous tribes would stand a fairer chance to win the presidency.
Article 38 (2) encapsulates the right of every citizen to free, fair and regular elections. The elections should be based on universal suffrage and the free expression of the will of the electors with regard to public or political party offices. Article 19 (2) of the South African Constitution provides for the right to free and fair elections in similar terms as the Kenyan Constitution. The South African Constitutional Court recognised the importance of the standard of free and fair elections as provided in Article 19(2) in the following words:
“The right to vote is of course indispensable to, and empty without, the right to free and fair elections; the latter gives content and meaning to the former. The right to free and fair elections underlines the importance of the exercise of the right to vote and the requirement that every election should be fair has implications for the way in which the right to vote can be given more substantive content and legitimately exercised.”
The concepts of regular, free and fair elections and universal suffrage have been defined in Chapter Two. Hence it will not be repeated here. It is noteworthy to mention that the Constitution provides that general elections will be held in Kenya on the Second Tuesday of August every fifth year.
Article 81 of the Constitution appears to elaborate the tenets of free and fair elections and provides that the electoral system must:
Allow citizens the freedom to exercise their political rights under Article 38.
Observe gender parity by ensuring that not more than two-thirds of the members of elective public bodies shall be of the same gender;
Ensure fair representation of persons with disabilities;
Facilitate universal suffrage based on the aspiration for fair representation and equality of vote;
Elections that are:
by secret ballot;
free from violence, intimidation, improper influence or corruption;
conducted by an independent body;
administered in an impartial, neutral, efficient, accurate and accountable manner.
The recognition of electoral standards as a right is in conformity with internationally accepted standards as espoused by the UDHR, ICCPR and DCFFE. The essentials of democracy and free and fair elections as espoused in the Article also appear to be in consonance with internationally accepted principles discussed in Chapter Two of this study.
Constituency delimitationConstituency delimitation is key to the determination of free and fair electoral processes because it underpins the principal of equal suffrage. In Kenya, constituency delimitation was completed in November 2012 after a recommendation by the Kreigler Commission Report on the postelection violence in Kenya in 2007-2008. The Commission suggested that every vote should carry equal value by ensuring that there is proportional representation. This appears to refer to the fact that the ratio of voters to the representatives among similar electoral units should be the same. Rajasingham posits that there must be set guidelines for the review to avoid gerrymandering. IFES has provided a list of the general internationally accepted standards for assessing whether constituency delimitation contributes to free and fair elections. The standards are adopted from various international bodies such as the European Commission for Democracy through Law and Electoral Institute of South Africa. They are as follows:
The High Court has also addressed itself to the internationally accepted standards on delimitation thus:
“The internationally recognized and accepted principles of boundary delimitations are representativeness, equality of voting strength, independent and impartial authority, transparency and non-discrimination.”
The Constitution of Kenya 2010 provides that parliament shall enact laws on delimitation by the IEBC. These laws shall define electoral units for election of members of the National Assembly and County Assemblies. Article 89 of the Constitution provides that the IEBC shall review names and boundaries of constituencies at intervals of between eight to twelve years. However, the review must be completed at least twelve months to the next general election. Review of the boundaries of Counties are treated separately in the Constitution and appear more difficult to alter. This view is held because for review of constituency and ward boundaries, the mandate is given to the IEBC while that of counties is given to a different independent commission to be set up for that purpose by Parliament. In both cases, the Constitution has provided that the review will be conducted by parties considered to be impartial.
The Constitution of Kenya 2010 provides that population quota should be considered in reviewing of boundaries. It provides that the quota should not exceed 40% for cities and 30% for other areas; It must be noted, however, that the IEBC’s mandate to realise these standards on the quota are progressive.The High Court, in addressing this matter, has stated as follows:
“It is clear the IEBC is constitutionally obliged to progressively work towards ensuring that the number of inhabitants of each constituency and ward is as nearly as possible equal to the population quota and this realization and/or goal cannot be realized overnight… We also appreciate that the right that each vote must be relatively equal to every other vote is an ideal and appropriate situation. In our understanding that is not to say that there cannot be a variation in population size between constituencies. Such variations or deviations can be justified on the basis of giving due weight to regional issues within a given population and geographical factors in the area where the delimitation is being carried out.”
It follows from the Court’s decision that the mere fact that the population quota has not been reached will not invalidate electoral boundaries. This appears to guard not just the letter of the law but also the spirit of the law.
Public involvement in the delimitation process may be direct or through representatives. In conducting the review, the institution mandated with carrying out delimitation must ensure that it takes into consideration the views of various interested parties. Additionally, for Counties boundary review, the special independent commission has to table the resolution for review to both houses of parliament. For it to pass, it requires at least two thirds majority of the county delegation. County boundary review will have to take into consideration similar factors to those of the constituency. It also factors in the cost of administration. This serves to enhance the representative nature of the constitutional provisions on constituency delimitation.
The constituency delimitation process must be conducted in a manner that does not discriminate against any person or group of people. The Constitution of Kenya 2010 provides that the process ought to take into consideration geographical features, urban centres and interests of the affected communities.
The Constitution places responsibility on the IEBC to ensure it factors in the interests of all that may be affected by the delimitation process. This does not mean that everybody will be satisfied with the process. A number of Court decisions have shown that certain instances and circumstances will not be construed as discrimination unless it can be demonstrated that such selection is unreasonable or arbitrary.”
The Constitution of Kenya 2010 provides that the results of the delimitation process will be published in the Kenya Gazette and any aggrieved Party may apply to the High Court within 30 days of the publication. Further, the guidelines provided make the process transparent because they can be ascertained and assessed.
Management of ElectionsIn reference to presidential electoral processes, the institutional framework comprises of the agencies and organisations responsible for implementation or oversight of the various stages of the electoral process. In Kenya, these institutions include the IEBC, the Judiciary, the Registrar of Political Parties, political parties, parliament, media and security agencies. IEBC is the main body tasked with supervision of elections and referenda amongst other responsibilities. The author holds the view that a critical analysis of the IEBC against standards expected of an elections management body is important under. It is important to evaluate whether IEBC is properly mandated and equipped to manage presidential elections in Kenya.
An Electoral Management Body (EMB) is so critical in the electoral process. It has been likened to a Shepherd with custodial responsibilities over the electoral process. Enabulele, decried the state of the Nigerian EMB and compared it to a shepherd that had turned into a wolf due to partisanship, malpractices and blatant breaches of the law. He stated as follows:
“…a good shepherd must at all times keep a watchful eye on the sheep; the shepherd must minister to their needs and be ready, even, to lay down his life to defend the sheep against its most formidable enemy, the wolf. Where the shepherd becomes a wolf, the sheep becomes defenseless and vulnerable to all sorts of dangers.”
For free and fair elections to be realised, the law governing EMBs should ensure that the EMBs are established and operated in a manner that ensures the independent and impartial administration of elections. Independence could mean two things; structural independence from the government (the ‘Independent Model’ EMB) or ‘fearless independence’ expected of all models of EMBs. Fearless independence mean that they do not bend to governmental, political, or other partisan influences on their decisions.
Indicators of independence
Abuya has argued that some of the factors that enhance an EMB’s independence include appointment procedures and their tenure in office. In Abuya’s view, the appointment process for members of an EMB ought to be transparent, fair and open to inspire confidence in the public. In addition to independence, an EMB ought to be competent, perceived as completely fair and be sufficiently funded in a timeous manner. This study proceeds to analyse the various indicators of Independence of an EMB. It is the author’s view that the analysis of independence of the IEBC will highlight the other factors mentioned by various authors as key in electoral management processe . This include but not limited to competence of the election managers and perception of fairness.
Institutional Independence (Legal framework)Independence of an EMB must be enshrined in existing laws if it is to be enforced. The IEBC is established under Article 88 of the Constitution which also lays out its main responsibilities. These duties include conducting or supervising referenda, carrying out continuous registration of voters , regular revision of the voters’ register, delimitation of constituencies and wards, regulation of political parties’ nominations processes, settlement of certain electoral disputes, registration of candidates for election, voter education, regulation of campaign funds and development of a code of conduct for candidates and parties contesting elections. The import of these responsibilities shows IEBC’s crucial role in elections in general. They also highlight the important role of IEBC in facilitating political rights. For example, facilitating registration of voters and facilitating the right to be registered as a voter. All these result facilitate free and fair elections.
The IEBC is an independent body subject only to the Constitution and the law. The Constitution clarifies that IEBC shall not be subject to the control of any person or authority and its funding shall be subject to a separate vote by Parliament. By these provisions, the Constitution of Kenya 2010 has attempted to provide for the independence of the IEBC and has reinforced it by providing for its composition, duties, and onerous removal procedures of its commissioners. Enactment in the Constitution is critical because it adds supremacy to the institution courtesy of the supremacy of the constitution over all other laws as well making its removal or principles of its operation more difficult to change.
Functional Independence (Clear duties, privileges and powers)An EMB must have clear duties, powers and privileges that are necessary to enable it carry out its duties effectively. The main duties of an EMB include voter registration and education, elections management which includes administration of the voting exercise, the vote counting, tallying and announcement of results. The law in Kenya absolves IEBC Commissioners from liability if they conduct their duties in good faith. Under this head, the study examines the membership of the IEBC, appointment of commissioners, tenure of office and financial independence. This is because these component greatly contribute to the functional independence of IEBC.
MembershipThe IEBC Act states that the IEBC shall have nine members: the chairperson and eight other members. The Constitution of Kenya 2010 sets out the qualifications of the members:
“(2) A person is not eligible for appointment as a member of the Commission if the person—
(a) has, at any time within the preceding five years, held office, or stood for election as—
(i) a member of Parliament or of a county assembly; or
(ii)a member of the governing body of a political party; or
(b) holds any State office.;or
(3) A member of the Commission shall not hold another public office.”
These qualifications serve the purpose of removing the notion of partisanship as well as inspire credibility of the commission. However, they do not seem adequate in light of the arguments by Professor Abuya that a member’s past record including close relationships to an incumbent president may be problematic. He gives the example of Kenya where the vice chairperson of the ECK at the time, Kihara Muttu was once an advocate of the then president Mwai Kibaki. This cast aspersions of favouritism and bias. It cannot be gainsaid that a nonpartisan EMB is not only critical in guaranteeing free and fair election but also creating the perception of an objective institution. Professor Abuya also argues that for the outcome of an election to be respected, each individual member of the EMB not only must be neutral, but also must be seen as impartial.” Enabulele blames the chaotic state of the Nigerian EMB on the constitutional provision that EMB members must belong to political parties. He argues that the Independent National Electoral Commission see themselves as an extension of the ruling party with negative consequences to democracy in Nigeria. The same case was observed in Botswana where the supervisor of elections was solely appointed by the president.
Under the IEBC Act, the chairperson must meet the criteria of a Supreme Court judge which imports experience and integrity. While in Kenya the commissioners need to be citizens holding at least a degree from a recognised university, they should also have proven experience in either electoral matters, management, finance, governance, public administration and law. They should also meet the requirements of leadership and integrity as enshrined in Chapter Six of the Constitution.
Appointment ProcessThe appointment process of members of an EMB should be transparent, fair and open to inspire confidence in the public. The 1969 Constitution gave the president absolute powers to appoint ECK commissioners and did not contain guidelines on qualifications of such appointees. This created the perception of bias and lack of independence as the ECK commissioners were perceived to owe their allegiance to the incumbent president. In January 2007, the then Kenyan president Mwai Kibaki unilaterally appointed ten commissioners and another five in October of the same year. This was a couple of months before the elections. Kreigler’s report states that this contributed to pre-election tensions thereby injuring the credibility of the ECK.
Currently, the IEBC Act, provides for the appointment of the chairperson as well as commissioners in an elaborate process that involves the following steps:
Selection of the panel to interview candidates for the positions- two nominees by the President and Prime Minister while the Anti-Corruption Commission, Judicial Service Commission and Association of Professional Societies shall each nominate one individual;
The names are forwarded to the clerk of the National Assembly and are debated in Parliament;
If approved, the panel is set up and has to invite applications for commission positions within seven days;
Interviews are then conducted in public and a shortlist of three people for chairperson and thirteen people for commissioners are availed.
The names are then forwarded to the president for nomination and thereafter to parliament for approval.
This elaborate process as provided by the law is objective, open and has several checks and balances which are critical in aiding independence of an EMB.
Tenure of Office of CommissionersSecurity of tenure is an important tool in safeguarding the independence of an EMB. Professor Abuya states that both Kenya and Zimbabwe strengthened independence of their respective EMBs by providing for five-year tenures for the commissioners. In the Kenyan context, the IEBC Act now provides for single six-year terms for all commissioners. Based on these guarantees, it is hoped that the EMBs and the Commissioners will be guided exclusively by the law in the discharge of their duties without fear.
Closely linked to tenure of office is the removal from office of the members of an EMB. Section 31 of the IEBC Act allows the Commission to make regulations on removal from office of the Commission’s staff. Article 251 of the Constitution states that a commissioner may be removed from office for serious violation of the law, gross misconduct, incompetence, incapacity or bankruptcy. The process of removal is as follows:
A petition is presented to the National Assembly setting out the complaint
The National Assembly shall consider the petition and if credible, forward it to the President who shall appoint a tribunal to investigate the matter and give binding recommendations
The President shall act on the recommendations within thirty days of receipt.
These provisions seem to have the effects of a double edged sword. Their elaborateness ensures security of tenure for the Commissioners whilst also making it possible to remove them from office when it becomes necessary to do so.
The secretariat of the IEBC including the chief executive may be removed from office due to inability to perform functions of the office arising out of physical or mental incapacity, gross misconduct, bankruptcy or incompetence.
The IEBC Act provides that Commissioners will serve on a full time basis. This is advantageous because it enables IEBC to adequately prepare for elections, manage voter registration as well as participate in post-election activities such as election petitions that may be filed. It also helps to maintain the impartiality of the Commissioners because during subsistence of the appointment, they will not have to engage in other work that could compromise their standing.
Financial independenceSince 1998, the ECK got its funding through Treasury under a lengthy and bureaucratic process of budgetary approvals. However, the position now under the IEBC Act is that the administrative and other expenses including the salaries, allowances, gratuities and pensions of its members and employees shall be drawn from the Consolidated Fund. In Nigeria, it appears that the INEC has been compromised because it gets funding at the pleasure of the executive.
In view of the elaborate provisions whose aim is to ensure independence of the IEBC and therefore electoral management process, there is need to examine if there are any checks and balances of these powers. The Ace Electoral Knowledge Network argues that given socio-political rivalries and the threat of electoral corruption, integrity should not be taken for granted. Mechanisms that make it possible to monitor actions an EMB should be implemented. They argue that “oversight of the electoral process by other government sectors or agencies, civil society, and the media” is important in checking excesses of independence. The legal framework should set out integrity protection mechanisms. International and national observer missions play a key role in enhancing integrity of election processes by revealing any irregularities or malpractices. This is also a good form of keeping EMBs accountable.
In the Kenyan context, the IEBC Act compels the IEBC to provide public interest information to any individual. However, such information may be given subject to payment of fees, confidentiality requirements and if the request is reasonable among other conditions. While the scrutiny of information held by IEBC as allowed by law is a good step in promoting accountability the conditions under which the information may be given to a large extent negate the gains made by that provision. Article 26 requires the IEBC to conduct its duties while observing the principle of public participation and consultation with stakeholders. The electoral process also allows elections observers to monitor the electoral process and publish reports on their observations. This is a further check to ensure that IEBC is not a rogue institution.
Voting RightsIn Chapter Two, the right to vote was considered as a key tenet of democracy. The right to vote allows equal opportunity to the polity to vote for the candidate of choice. This right must be applied equally and in a non-discriminatory manner. This generally means that individuals should be provided with equal opportunities to voice their opinions and to participate in the political process. It must be noted that the right imposes an obligation on the state not just to refrain from interfering with enjoyment of the rights, but also to take positive steps towards their protection.
Article 38 (3) of the Constitution provides as follows:
“(3) Every adult citizen has the right, without unreasonable restrictions-
(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and
(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.”
The importance of the right to vote cannot be overemphasized. Ebersohn, JA confirmed its importance to democracy by stating as follows:
“The right to vote, and the exercise of it, is a crucial working part of our democracy. Without voters who want to vote, who will take the trouble to register, and to stand in queues …democracy itself will be imperiled. Each vote strengthens and invigorates our democracy.
In Sauve vs Canada, the Supreme Court of Canada affirmed the importance of the right to vote in the following words:
“the right of all citizens to vote, regardless of virtue or mental ability or other distinguishing features ,underpins the legitimacy of Canadian democracy and Parliament’s claim to power. A government that restricts the franchise to a select portion of citizens is a government that weakens its ability to function as the legitimate representative of the excluded citizen, jeopardizes its claim to representative democracy, and erodes the basis of its right to convict and punish lawbreakers.”
Grier Stephenson has argued that encouraging high voter turnouts in elections should be a priority of a state seeking free and fair elections. This is because low voter turnouts not only result in election of officials without the support of the majority but also exaggerate the influence of well-organized and intensely motivated interests.” This suggests that low voter turnout are breeding ground for unfair political practices. Kirshner highlights the provisions of the Peruvian Constitution which makes voting mandatory for its citizens:
“Citizens enjoying their civil capacity have the right to vote. The vote is personal, equal,
free, secret and obligatory until one is seventy years old. It is optional after this age. All
acts that limit or prohibit citizens from exercising their rights are null and punishable.”
According to the Havard Law Review, about twenty four countries practice some form of compulsory voting. The article argues that voting should be made compulsory so as to legitimise government. The idea posited is that when voter turnout is increased, electoral outcomes are more likely to reflect the will of the people. This will enhance democracy. The article further asserts that when the law provides for the right to vote, there is no converse right not to vote. It pre-empts the argument that forcing people to vote infringes on their rights. It argues that forcing people to vote would be a legitimate infringement of their liberties. According to Kirshner, constitutions that provide for compulsory voting are robust and considered to enhance democracy. This will have an impact on the quality of elections. This is a path the Kenyan Constitution should embrace in order to enhance free and fair elections.
The Constitution provides conditions for those who may be registered as voters. One must be an adult citizen of sound mind. One must not have committed an electoral offence during the preceding five years. It is curious that the Constitution prohibits an individual with an electoral offence record of 5 years preceding the election from voting. The Constitution also provides for the progressive registration of all eligible voters including those residing outside Kenya. This provision was tested in Jeffer Kanu vs Independent Electoral and Boundaries Commission and 3 Others. In that case, Jeffer, a Kenyan Citizen residing in the United Kingdom sought orders to compel the IEBC to register him as a voter together with other Kenyan citizens residing outside the country. The intention was to enable him vote in the 4th March 2013 general elections. The Court, while recognising the importance of the right to vote, held that it could not compel IEBC to register ‘Diaspora’ voters as the right to vote for citizens outside Kenya was to be progressive This decision highlights the difficulty in enforcing this right as it is couched in vague terms. The implementation timelines must be clearly defined. The Supreme Court also stated that progressive rights do not place an immediate obligation on the state to take any particular steps within particular timelines. In the Kanu Case, IEBC demonstrated that it was able to register Kenyans in the East African region and pledged to continue expanding the scope of voters. IEBC should put in place administrative measures to ensure that all Kenyans in the diaspora are registered as a prerequisite of exercising their right to vote.
The decision in the Kanu Case must be distinguished from that of Kituo Cha Sheria vs. Independent Electoral and Boundaries Commission & 2 others. In the latter case, the Court held that the state and its agencies ought to take immediate steps to ensure the right of prisoners to vote is realized. The Court distinguished the right of prisoners from that of Diaspora citizens which requires progressive realisation. In 2017, IEBC conducted registration of prisoners as voters. In the 103 prisons, 5,528 prisoners were registered as voters.
With reference to persons with disabilities, the Elections Observation Group (ELOG) Report faults the IEBC for failure to adequately provide for persons with disabilities in the 4th March 2013 Kenyan general elections. The Report decried the lack of adequate facilities to ease access and voting for persons with disabilities. The IEBC will need to take appropriate steps to ensure that those who are disabled can exercise their rights as provided in the Constitution without undue disadvantage.
Registration of VotersThe right to vote must be preceded by the right to be registered as a voter. The sanctity of the resultant register is therefore critical to free and fair elections and ought to be safeguarded. In the case of Georgian Labour Party vs Georgia, the Court showed the nexus between free and fair elections and the voters’ register. The Court held as follows:
“The Court considers that the proper management of electoral rolls is a pre-condition for a free and fair ballot. Permitting all eligible voters to be registered preserves, inter alia, the principles of universality and the equality of the vote, and maintains general confidence in the State administration of electoral processes”
This part looks at what standards should be applied to the Voter registration process in order to consider it free and fair. Gill posits that the registration system ought to have the following characteristics:
Must be up to date
Enable qualified citizens to participate
Sanctity of the register
Prevent electoral abuse and fraud
The OSCE Handbook for the Observation of Voter Registrationhighlights the key issues to consider when looking at the voting process. They are listed below:
Inclusivity and non-discrimination.
The approach in this section is to combine the constituent elements proposed by Gill and OSCE. This is considered because both write from the generally internationally accepted standards. To avoid duplicity, the assessment will cover sanctity, accuracy, regularly updated register, inclusivity and non-discrimination. Eligibility and inclusivity are not discussed here since they have already been covered under the right to vote while protection of the register from fraud will be covered under the title ‘Accuracy of the Register.’
Sanctity of the Register
Sanctity of the register of voters refers to the importance of the register containing the names of the eligible voters. It is the list accepted for purposes of verifying who the eligible voters are in any given election. The sanctity of the voters’ register was a subject of adjudication by the Supreme Court of Kenya in Raila Odinga vs Independent Electoral and Boundaries Commission & 3 Others. The Petitioners criticised the IEBC for failure to provide one register for use during the elections. Instead, IEBC had used several registers which altered the number of registered voters after the registration closure date. IEBC on its part argued that it was allowed, under Article 88 of the Constitution, to take administrative steps to ensure that eligible voters were registered. The Supreme Court upheld the use of multiple registers. This holding was contrary to general international standards on electoral processes that require a voters’ register to be complete and accurate. In allowing multiple registers, the Supreme Court set a precedent that may be subject to abuse. It is noteworthy that the Constitution, save for the right to vote, does not have provisions on the nature of the voters’ register.
In response to the errors noted in the 2013 general elections, there were several amendments made to the law in 2016 and 2017. One of the changes touched on the introduction of the Integrated Electoral Electronic System (IEEM) for purposes of registration, identification of voters and results transmission. Further amendments provided for the establishment of a single register by deleting the word “Principal” from the definition of Principal Register of Voters with the result that there would only be one Register. It appears that with this amendment, the reliance by IEBC on multiple registers is based on legislative ambiguity.
Accuracy of the Register
Save for Article 82(1)(c) of the Constitution of Kenya which provides that Parliament shall enact laws for the continuous registration of voters and Article 83 that speaks to the eligibility to register as a voter, the Constitution of Kenya doesn’t have further provisions directly connected to the register of voters. The Election Laws (Amendment) Act of 2016 provides for the voters register and specifically requires that an audit of the voter register be done at least 6 months to the elections to remove any errors in the register. It also provides that the register will be open to the public to verify their biometric data at least three months before the elections. The two provisions greatly contribute to both the accuracy of the register and transparency of the registration process since the aim is to ensure an error or tamper free register. The timing of the provisions on voter verification and audit appear problematic because in the author’s view, it may be more prudent to have the audit after verification so that the audit is done after all amendments have been done to the register.
During the run up to the 8th August 2017 general election, ELOG requested for the Voters register for purposes of assessing its accuracy after an audit was conducted by KPMG. ELOG reports that the register had errors, inconsistencies, and inaccuracies even after the audit. There were reports of duplication and erroneous entries of about 19,000 voters in the register.
Regularly Updated Register
Article 88 of the Constitution mandates the IEBC with the responsibility of continuous registration of citizens as voters. The law envisages that as many eligible citizens can be registered as voters at any time. Regular updates of the register are important to ensure that new voters are registered while records of the deceased are cleaned out. In Ghana, the register of voters in a particular election was considered too inflated because they had not removed the names of the deceased. Failure to clean up the register can result to lack of trust in the sanctity of the register. As a result, this would then dent the credibility of the entire electoral process.
Before the 2013 elections, IEBC had failed to continually register voters and had been faulted for that. However, after the 2013 elections, efforts were made to continuously register voters through the government’s Huduma Centres.
Registration has been considered a cumbersome and expensive process due to the financial, logistical and human resource requirements. Mitullah et al have proposed that registration of voters be tied to the application of identity cards in Kenya. That way, it appears that several challenges will be addressed: First, the requirement of duplicate documents from the two processes will be eliminated; Second, the registration process will be continuous because citizens apply for their identity cards throughout the year; Third, the registration process will utilise existing logistical and human resource systems; and lastly, it will ensure that as many adult citizens have been registered as voters. This recommendation was also made by the IREC Report.
It appears, from the analysis in this part, that while we have a broad spectrum of laws, the constitutional framework on registration of voters is not adequate since the constitution is silent on the voters register which is a critical element of any electoral process.
Candidacy, Political Parties System and Organisation.
Article 38(1) of the Constitution provides for the right:
“(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or
(c) to campaign for a political party or cause.”
CandidacyThe ICCPR provides that citizens have a right to take part in and to be elected to public office without discrimination. This provision has been adopted as part of the acceptable standard in assessing the quality of the right to vie for public office. Electoral Guidelines emphasise the need for an electoral legal framework to ensure that no identifiable group in society is marginalized from exercising their political rights and that any restrictions to this right ought to be reasonable. This part examines the exercise of this right in the context of the Kenyan constitutional framework. It examines the following:
Whether the Constitution clearly provides for the right to vie for presidency
Whether the restrictions, if any, are reasonable.
Right to Vie for Presidency
Article 38 (3) of the Constitution provides as follows:
“(3) Every adult citizen has the right, without unreasonable restrictions-
(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.”
Under the Constitution a candidate shall be eligible for nomination as a presidential candidate if he is a Kenyan citizen by birth, qualified to be elected as a member of parliament and supported by at least two thousand voters from a majority of the forty seven counties. This translates to 48,000 voters. A list of the names of supporters with their signatures, passport or identity card numbers and voting card numbers should be forwarded to the IEBC at least five days to the date of nomination.
The individual may be nominated by a political party or vie as an independent candidate. The 2013 general elections did not have any independent presidential candidates. However, reports show that there were fifty six independent candidates vying for gobernatorial, senatorial, women representative and Member of Parliament positions. The 2017 general election and its repeat presidential elections saw participation of three independent presidential candidates. To vie for a seat as an independent candidate, one should not have been a member of any political party three months preceding the elections. The inclusion of independent candidates in the law has been heralded as a move to increase political choice and exercise of right to vie for public office.
Restrictions on the right to vie for presidency
OSCE guidelines caution against punitive conditions that may hinder exercise of political rights. The requirement to have atleast 48,000 supporters before one can be considered appears punitive especially to independent candidates. The identifiable reason for this requirement may be the emphasis on the requirement that candidates demonstrate popular support. However, a balance must be struck between discouraging frivolous candidates and preventing legitimate candidates from exercising this right.
Schedule 3 of the South African Constitution provides for the nomination and election procedure for the president. The Chief Justice is mandated to call for the nomination of candidates at the meeting called for election of the president. A candidate is required to fill out a prescribed form. This form must be signed by at least two members of the National Assembly. The nominee is then required to demonstrate acceptance of the nomination. The South African Constitution envisages a simpler nomination process and requires only two members out of the 400 members of Parliament to support the presidential candidate. It must be noted though that in South Africa, the president is elected by the National Assembly. That notwithstanding, the requirement that only two members of parliament support a presidential candidate appears too simplistic.
There is the question as to how does the IEBC verify the names, signatures, identification card numbers and voters’ card numbers of the names of the voters? The constitution and other laws appear to be silent on this critical aspect. The consequence of this lacuna in the law is to give discretion to the IEBC to devise mechanisms of verification. This threatens the right to vie for political office because it exposes a critical aspect of nominations to abuse. Given the importance of nominations, a framework should be developed which will provide for the verification procedure and ensure that the process is applied uniformly. This requirement seems to have lost that balance. It needs to be re-examined with a view to reducing the number of supporters.
According to IDEA Guidelines, restrictions to suffrage rights ordinarily exist, but must be justifiable and enshrined in law. Where there is age restriction, the rights must be made accessible to all within the permitted age groups. The guidelines do not consider political crimes that are long past as a basis for denying voting rights. This issue was considered by the Kenyan Courts in 2013 in a case challenging the clearance of Uhuru Kenyatta and William Ruto as candidates for the presidency. The Court held that while Article 10 and 73 of the CoK provides guidelines on integrity of state officers, it was necessary to recognize that the two among others had fundamental rights of presumption of innocence until proven guilty as well as right to vie for office. Curiously, the Court also held the view that the citizens of the country had a right to exercise their right to vote for whomever they chose and the Court would not interfere with that right. This decision has been faulted for ignoring the very principles that Chapter Six of the Constitution was promoting. It is the author’s view that the Court contradicted itself in the decision when it adopted the following holding but still failed to hold that the respondents were not fit to vie for political office:
”..In our view, for purposes of the integrity test in our Constitution, there is no requirement that the behaviour, attribute or conduct in question has to rise to the threshold of criminality. It therefore follows that the fact that a person has not been convicted of a criminal offence is not dispositive of the inquiry whether they lack integrity or not. As the Democratic Alliance case held, it is enough if there are sufficient serious, plausible allegations which raise substantial unresolved questions about one’s integrity.”
Under the Constitution of Kenya 2010, limitation of a right must be founded in law and on the fact that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. It further provides measuring standards on when the limitation is justified. These provisions preclude judicial officers’ arbitrary interpretations of limitations to this rights. The factors to be considered are:
” (a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by
any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.”
The question of gender and persons with disability also need to be considered so as to ensure none suffers discrimination. It is the author’s view that while this study restricts itself to presidential elections, addressing the hitherto injustices against women and the disabled will go a long way in opening up the space for them to view for presidency. It is in this regard that gender equality and promotion of rights of persons with disabilities are considered very crucial goals of building democratic institutions. The South African Constitutional provisions on political rights do not expressly provide for gender parity or rights for the disabled. However, special consideration for the disabled and gender may be imported from Article 9(3) of the Constitution which prohibits discrimination on the basis of gender and disability. The South African Constitutional Court has also recognised that political rights may affect different people differently based on literacy levels, residency and political beliefs. This imputes appreciation of affirmative action as a means to ensure equality in enjoyment of political rights. This has not been the case with the Kenyan Supreme Court which appeared to place obstacles on the gender rule. The rule stipulates that not more than two-thirds of elected officials should be from the same gender. Majority of the Supreme Court of Kenya bench opined that the gender rule ought to be progressively implemented and gave an implementation date of 27th August 2015. This was despite the clear provisions of the Kenyan Constitution. Some of the arguments posited by Parties in the Supreme Court reference highlighted the ambiguity of the constitutional text because it failed to provide clear processes on implementation of the rule. In a dissenting sole opinion, Mutunga, CJ held that the rule ought to have been implemented in the 2013 General Elections. To highlight the ambiguity in the term ‘progressive realisation’ , it was held as follows:
“After considerable reflection upon this point, we have come to the conclusion that the expression “progressive realization”, (sic) as apprehended in the context of the human rights jurisprudence, would signify that there is no mandatory obligation resting upon the State to take particular measures, at a particular time, for the realization of the gender-equity principle, save where a time-frame is prescribed. And any obligation assigned in mandatory terms, but involving protracted measures, legislative actions, policy-making or the conception of plans for the attainment of a particular goal, is not necessarily inconsistent with the progressive realization of a goal.”
These rights are vital in a democracy because they provide a means by which people can participate in the democratic process. The rights must not only be guaranteed, but must also be equally applied to citizens.
Political Parties System and Organisation
How do the rights pertaining to participation in political parties affect the quality of presidential elections? Schattschneider argues that political parties create democracy and that modern democracy is unthinkable save in terms of parties. Schattschneider’s view ought to be held in the context that political parties are critical in democracy but of themselves do not constitute democracy. Marcin Walecki also opines that political parties are the foundation of democracy because they provide a structure for citizens to participate in governance. It is therefore clear that protection of the rights to form, join and participate political parties gives room for presidential candidates to present themselves for nomination by a party of choice or form a party of choice. This can be contrasted with the pre-1991 constitutional framework that expressly provided that Kenya was a single party state.
The constitutional framework for presidential elections ought to protect the right to form political parties of their choice and thereafter guarantee equal treatment of the Parties before the law. An assessment of the laws on the requirements to register a political party is critical because it can operate both as formal or a substantive restriction to the enjoyment of the attendant rights. This study proceeds therefore to examine whether the law adequately facilitates the right to form political parties.
Article 91 of the Constitution provides conditions necessary for registration of a political party. It provides that a political party should:
have a national character;
promote and uphold national unity;
practice democratic principles of good governance, regular, fair and free elections of its governing body and other party officials;
respect individuals’ right to participate in the political process, including minorities and marginalised groups;
respect and promote human rights, fundamental freedoms, gender equality and equity;
promote the objects and principles of the Constitution, and the rule of law;
commit to and observe the code of conduct for political parties;
not be formed on religious, linguistic, racial, ethnic, gender or regional basis;
not engage in or encourage violence;
not establish or maintain a paramilitary force, militia or similar organisation;
not engage in any form of corruption;
not use public resources to promote its interests or its candidates in elections.
If these principles are violated, an association will not be registered as a political party. The question arises whether these conditions are necessary or place obstacles to political rights. The South African Constitution provides for the right to form a political party, participate in its activities and campaign for its causes. Jason Brickhill and Ryan Babiuch argue that these rights, as provided in the South African Constitution, are not absolute and must not be construed as such. For example, a right to participate in activities of a political party does not permit individuals to participate in all political parties; participation may be limited by constitutions of the various parties. The South African Constitution does not provide for limitations to registration of political parties, however, Section 16(1) of the Electoral Act of South Africa permits the Chief Electoral Officer to deny registration of a political party that does not adhere to democratic standards. Brickhill et al contend that such a limitation is justifiable. According to Office for Democratic Institutions and Human Rights’ Guideline for Reviewing a Legal Framework for Elections (OSCE Guidelines), registration requirements should be relevant, clear, uniformly applied and serve the purpose of satisfying that a party commands sufficient support. Further, grounds for rejection of any application for registration ought to be tacitly stated in the law and must be based on objective criteria. Based on these standards, it can be said with relative comfort that the requirements of the registration of political parties provided in the Constitution of Kenya 2010 are justified.
Campaigns and Protection of Fundamental Human RightsThis part looks at the legal framework around campaigns and the protection of human rights during the campaign period.
According to IDEA,
“The legal framework should ensure that each political party and candidate enjoys the right to freedom of expression and freedom of association, and has access to the electorate, and that all stakeholders in the election process have an equal chance of success.”
This means that the law should prescribe the manner in which parties and candidates conduct their campaigns in an equitable manner and without infringing on the rights of others. This study examines the existing framework against the standards of whether the constitutional framework ensures equality in the treatment of political campaigns.
The Constitution of Kenya 2010 provides that citizens have the right to campaign for a political party or cause. Parliament is required to enact laws that will ensure the reasonable and equitable allocation of airtime by State-owned and other specified categories of broadcasting media. This law appears to implement some of the recommendations made in the Kreigler Report that required clear guidelines on use of media during electoral processes. The Election Campaign Financing Act was enacted in 2013 but its operationalization was suspended in 2017 through Act No. 1 of 2017 until immediately after the General Elections of 2017. The purpose of the Act is to regulate activities related to fund raising and expenditure of elections or referenda .
This law remains largely untested because its operation only commenced after the 2017 general elections. However, suffice to state that the Constitution takes cognizance of the important role of campaigns in the electoral process by providing for a legal framework to be put in place.
The UDHR recognises human rights as inalienable rights of all human beings. Tanaka, J. upheld this notion when he held that human rights do not depend on whether a state wishes to grant them either by law or other legislative measures, rather, they existed even before the state. The idea posited here is that a state cannot, either by law or constitution claim to create or give human rights. They are not earned but exist as of right and cannot be denied on the basis of “race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”
If human rights are inalienable, why should their encapsulation in the constitution be celebrated? The implications of constitutional backing of political rights are twofold: the rights are enshrined in the highest ranking laws giving them importance. Secondly, they are protected from arbitrary amendments due to the onerous constitutional amendment processes. Constitutional protection of political rights has been supported widely. According to The International Electoral Standards Guidelines for Reviewing the Legal Framework of Elections (the Guidelines), it is important for general principles on electoral systems to be enshrined in a constitution. Gutto argues that constitutions are considered as the highest laws in any hierarchy of laws in a country. Beetham on his part argues that freedoms necessary to uphold democracy have not been realised in practice unless they were enshrined as an individual set of rights in a constitution. For these reasons, there has been emphasis on the need to entrench fundamental guarantees protecting free, fair and regular elections in a country’s constitution.
The protection of fundamental rights is key during the electoral process. Specifically, the right to life, freedom of movement, assembly, association and expression appear of keen interest to observers in elections. Gill provides that an electoral process needs to factor in the following:
“whether freedom of movement, assembly, association and expression have been respected throughout the election period; whether all parties have conducted their political activities within the law; whether any political party or special interest group has been subjected to arbitrary and unnecessary restrictions in regard to access to the media or generally in regard to their freedom to communicate their views; whether parties, candidates and supporters have enjoyed equal security; whether voters have been able to cast their ballots freely, without fear or intimidation; whether the secrecy of the ballot has been maintained; and whether the overall conduct of the ballot has been such as to avoid fraud and illegality.”
The Constitution provides an elaborate array of fundamental rights covering political rights, right to life, movement and residence, equality, security, expression, association, media and freedom from discrimination. The violence ridden political history of elections, not just in Kenya, but across many countries necessitates that any electoral legal framework ensures that fundamental rights are protected during this period. The law should be able to guarantee protection of human rights as well as penalize those that breach the rights of others. It is important to note that the Election Offences Act is in place to deal with breaches of the law during elections. This law supplements the already existing criminal legal framework in the country.
It is noteworthy that the State, under the social contract, has an obligation to protect the human rights of everyone within its territory and subject to its jurisdiction. Since the state cannot act outside of the law, the rights must be enshrined in some law of that state. It is for this reason that the recognition by the constitution of the political rights is viewed largely as enhancing free and fair elections. Ongoya et al argue that individual political rights play a definitive role in an electoral legal framework. Belete also posits that that political rights are the foundation of democracy, without which, a country cannot be termed as democratic. Beetham argues that people can only influence or control public decision making if they are free to communicate, associate with others, receive accurate information, express divergent opinions amongst other freedoms.Balloting, Tallying and Announcement of ResultsPolling Procedure
Article 138 of the Constitution contains provisions on the election of a president in Kenya. Where only one candidate is nominated to run for office of the president, such a candidate shall be declared as duly elected. If there are two or more candidates, elections will be held in every constituency. Polling procedures during elections are critical to the overall assessment of whether an election is free and fair. International standards on free and fair elections require that the polling procedure be subjected to the following tests:
Secrecy of the ballot
Non-discrimination and equal suffrage
Verification of voters
Monitoring of the process
Secrecy of the ballot
The law makes it clear that voting shall be by secret ballot. Further, all those qualified to vote in the parliamentary elections shall be eligible to vote in presidential elections. IEBC is mandated to provide authentic ballots, count ballots, tally, verify and thereafter declare the results. The secret ballot has been prescribed in international and regional instruments. This prescription has gained acceptance in many local constitutions. From a personal observation in three past elections in Kenya, the process entails an individual being given a ballot paper, he proceeds to a secure and secluded area. He marks against the preferred candidate and thereafter deposits the ballot in a ballot box without indicating their identity on the ballot paper. It is hailed because it protects voters from intimidation, fear or being reprimanded or harassed for their choices. To understand the importance of the secrecy of the ballot, one may need to contrast this with a polling process in Kenya during the 1988 elections where people had to queue behind photos of their preferred candidates- commonly referred to as the mlolongo system. Voters were intimidated and harassed by opponents for being disloyal to preferred candidates.
The IEBC is under statutory duty to ensure that the electoral process it implements is simple, accurate, verifiable, secure, accountable and transparent. In the March 2013 elections, IEBC opted for Biometric Voter Registration (BVR) during voter registration; Electronic Voter Identification (EVID) on polling day; and Results Transmission System (RTS) during tallying. However, the electronic systems failed due to inadequate power supply, inability of presiding officers to log onto the electronic system and a plethora of other systemic failures.
After evaluation of the electronic voting system in the United States of America, Konho et al made the following findings:
“Our analysis show that this voting system is far below even the most minimal security standards applicable in other contexts. We identify several problems including unauthorized privilege escalation, incorrect use of cryptography, vulnerabilities to network threats, and poor software development processes. That said, we demonstrate that the insider threat is also quite considerable, showing that not only can an insider, such as a poll worker, modify the votes, but that insiders can also violate voter privacy and match votes with the voters who cast them. We conclude that this voting system is unsuitable for use in a general election. Any paperless electronic voting system might suffer similar flaws, despite any “certification” it could have otherwise received. We suggest that the best solutions are voting systems having a voter-verifiable audit trail, where a computerized voting system might print a paper ballot that can be read and verified by the voter.”
While the Constitution does not impose use of an electronic system, the Election Regulations provide for both manual (ballot voting) and electronic voting. It is noteworthy that Konho et al, in their critique of electoral systems, made reference to electronic voting. However, their critique still has lessons to offer Kenya. This is because they highlight the importance of having verifiable electronic processes.
Against the background of the problematic electoral processes, one of the main question that arises is whether, in choosing the electronic system, the IEBC complied with the constitutional guidelines that it should be simple, accurate, verifiable, secure, accountable and transparent. Machines have been prone to failure, manipulations and fraud. For instance, the Supreme Court of the Philippines held that it could not guarantee the effectiveness of the voting machines and the integrity of the software embedded in them. The experience in the USA, being a developed country, also suggests that electronic systems pose real risks to free and fair elections. In view of such lucid admissions by technology experts on their risks and shortcomings, electronic systems neither appear to meet the threshold in the constitutional standards nor facilitate free and fair elections. The IEBC needs to review their decision to use electronic systems. Alternatively, they need to take time to develop systems that work. This may include years of developing capacity, training human resource and acquiring the electronic gadgets.
Obote Odoracriticized the Supreme Court’s findings on use of electronic systems for the March 2013 elections. In his view, the Supreme Court ought to have imputed liability on IEBC for failure of the electronic systems during the elections. He further opines that IEBC ought to have made adequate arrangements to deal with the inherent risk of electronic systems failure. In his words:
“At paragraph 233, the SCK took judicial notice of the fact that as with all technologies, so it is with electoral technology: it is rarely perfect, and those employing it must remain open to the coming of new and improved technology. The court therefore appears to have taken the view, based exclusively on judicial notice, that technology used by the IEBC was expected to fail in any event… On the other hand, if the facts were so obvious that technology would fail, the Court ought to have decided which party should bear responsibility for the resultant failure? … The Supreme Court did not, however, address the responsibility of the IEBC for the purpose of determining the rights of the Petitioners, and subsequently whether election was free, fair and transparent. … the Court recommends that the Director of Public Prosecutions (DPP) investigates the circumstances surrounding the purchase of the failed technology. Regardless of what the result of the DPP’s investigation is, the findings shall be irrelevant for the purpose of the Presidential Election Petition of 2013.
This study contends that the SCK was right in taking judicial notice of the inherent risks of electronic systems failures. However, it agrees with the concern raised by Odora that IEBC, after appreciating the risks, ought to have demonstrated that adequate mitigation measures had been put in place. This failure has led to what has been considered as monumental incompetence of the IEBC. This raised suspicion that are difficult to dispel. The impression created is that the elections were not free and fair. Furthermore, the result of the SCK’s judgment not only denied the Petitioners justice but also appeared to excuse the incompetence displayed by the IEBC.
Non-discrimination and equal suffrage
The principles of non-discrimination and equal suffrage have been discussed under Chapter 3.2 and will not be repeated here in detail. These principles are important in the polling process because they ought to inform the number of polling stations, how close they are to ensure equality of vote and lastly how accessible they are to the citizenry. They additionally inform the opening and closing times of the polling stations.
Vote Counting and Tallying
The most critical stages in the electoral process are vote counting and tallying. For this reason, the process of counting and tallying of the ballots must be transparent and open . Due to the critical role of the two processes, unscrupulous individuals have attempted to manipulate them through stuffing of ballot papers in the ballot boxes, excluding observers from the counting and tallying halls and interference with the markings on the ballots. The Constitution provides that the votes cast ought to be counted, tabulated and the results promptly announced. It further provides that mechanisms and institutions ought to be put in place to curb electoral malpractices.
According to the Election (General) Regulations, 2012 , counting of votes should be facilitated by a presiding officer in the presence of either a candidate or a deputised representative, security officers on duty, party agents, IEBC officials, accredited observers and media officials. Counting procedures are manual and require a presiding officer to pour the contents of ballot boxes on a surface and cause them to be counted and recorded in specified forms. Agents present may dispute the inclusion of a ballot in favour of a candidate and a recount may be ordered. This process, to a large extent, enhances transparency and fairness because it allows agents of the various parties or candidates to participate in the vote counting. The counting process in Kenya appears to be in consonance with accepted standards of openness and transparency because it provides for open counting and contemplates the presence of observers and party agents. Any ballot paper that does not bear the requisite security marks, is unmarked or improperly marked shall be declared void and shall not be counted. The Election Rules further distinguish between rejected and disputed votes. Disputed votes are those on which objection has been raised by party agents or candidates while void votes are improperly marked. In the Election Rules, disputed votes shall be considered in the final tally.
Tallying of ballots is conducted by the Returning Officer after receipt of results from the respective polling stations. The Rules contemplate electronic and manual relay of election results from the polling stations. Results from a polling station whose number of valid votes cast exceeds the number of registered voters shall not be considered in the Returning Officer’s final tally. The Rules state that the venue of the final tallying of presidential results shall be in Nairobi and tallying shall be done in the presence of either a candidate or a deputised representative, security officers on duty, party agents, IEBC officials, accredited observers and media officials. These principles are intended to lend credibility to and ensure transparency and openness in the tallying process.
One of the issues raised in the Raila Odinga -vs- Independent Electoral and Boundaries Commission ; 3 Others case was that party agents were excluded from the tallying centre and therefore could not verify the results. The Court ,in applying its mind to the issue, asked whether IEBC was right in doing so. The Court held, and rightly so, the view that the presence of party agents touched on public perception and legitimacy of the process. It further rightly held that IEBC was expected to operate transparently, without retreating from the public forum of visibility, and without disengaging from the stakeholders of the electoral process. Despite these clear admissions, the Supreme Court finally held that in their view, the exclusion of party agents did not injure the credibility of the tallying process and the election was free and fair. This holding must be faulted on the following grounds:
The Rules are unambiguous and do not give IEBC discretion on whether or not to allow party agents in the tallying centre. The Court’s decision to impute that discretion watered down not only the legislation but also the concept of transparency which is necessary in free and fair elections.
The presence of party agents is designed to enhance the constitutionally recognised principles of free and fair elections. In the absence of transparency, legitimacy issues inevitably arise.
Legitimacy of elections and public confidence in democratic governance is usually dependent on both actual and perceived integrity of electoral processes. The court having agreed with this position could not later hold such an election as legitimate, free and fair.
The process of tallying the presidential ballots was a concern in the Odinga Case. Pursuant to Odinga’s assertions of inconsistencies in the process, the court ordered, suo moto, the scrutiny of all Forms 34s and 36s which were used in the country’s 33,400 polling stations to record presidential ballot results. After the re-tally of the votes, it was found that 5 polling stations, out of the 22, had discrepancies as to the number of votes cast in respect to those reflected in the forms. It also established that some Form 34s were missing in some polling stations. Other discrepancies highlighted in the investigations report include the fact that there were six (6) polling stations for which the numbers differed, Sixteen (16) of twenty two (22) polling stations recorded voter turnout exceeding 100% when using Form 34s and the Principal Register . According to the law, results from polling stations that show more than 100% voter turnout must be cancelled. The Supreme Court judgment failed to substantively address themselves to these inconsistencies. The decision of the Supreme Court has been heavily criticised with one author terming the Supreme Court as the loser in that electoral process.
Article 138(4) of the Constitution of Kenya 2010 provides that a presidential candidate must garner more than half of all the votes cast and at least 25% of votes cast in at least more than half the counties. This provision was subjected to judicial interpretation when the IEBC in the March 2013 elections included the rejected votes in the final tally of presidential results. The Election Rules provide that rejected votes should not be considered in the final tally and was therefore in conflict with the Constitution. The Court curiously sought to answer the question of whether the constitution intended to include rejected votes. The Court held that rejected or void votes ought not to be considered in the final tally. The Court erred by deciding to rely on legislation which was in conflict with the unequivocal provisions of the Constitution. The Constitution is the supreme law and any other law that is inconsistent with it becomes null and void to the extent of that inconsistency. Article 138 (4) is very clear that the presidential tally should take into account “all votes cast.” It was therefore wrong for the Court to attempt to interpret the constitution based on subsidiary legislation while the converse should have been the case. Further, the Court was wrong to apply the purposive approach in interpreting the provision because the Article is very clear.
Election results must be announced promptly and openly and there must be provision for sufficient time to undertake verification of the results. Section 39 of the Elections Act require the IEBC to determine, declare and publish election results immediately after closing of polling. Article 138 (10) of the Constitution requires that results of presidential elections be announced within seven days of the elections. If no candidate meets the constitutional threshold, a fresh election is to be held within thirty days after the previous election. In the fresh elections, only candidates with the largest number of votes shall present themselves for elections. The Candidate with majority votes shall be declared the winner. A presidential election may be cancelled and a new election held in the following circumstances:
“(a) no person has been nominated as a candidate
(b) a candidate for election as President or Deputy President dies on or before the scheduled election date;
(c) a candidate who would have been entitled to be declared elected as President, dies before being declared elected as President.
In such a case, new elections will be held within sixty days after date of previous election.
In the March 2013 general elections, presidential election results were announced almost five days after polling stations were closed. This was considered an inordinate delay despite the law allowing the IEBC Seven days within which to announce results. Ssempebwa opines that the elections considered the ‘most high-tech in Africa’ turned out to be shambolic. The delay was occasioned by equipment failure, incompetent recording of spoilt ballots and failure of the Results Transmission System (RTS) technology.
Complaints and Dispute Resolution
The SCK is established under Article 163 (1) of the Constitution. It consists of the Chief Justice, Deputy Chief Justice and five other judges. The main role of the judiciary in electoral disputes is to determine the validity of elections. Abuya argues that the judiciary plays a pivotal role in ensuring free and fair elections because it is the guardian of the Constitution in a particular country. He also adds that due to the pivotal role the judiciary plays, it must protect itself from undue influence from other arms of government.
In the presidential electoral process, the role of the SCK is that of dispute resolution. It is important to assess dispute resolution mechanisms of electoral processes because election disputes are considered inherent in electoral processes. It has also been noted that the most typical causes of subversion of political rights are inadequacies in adjudication process. These challenges include but not limited to competence of the judicial officers, independence of the courts, or systematic obstacles to individuals seeking redress or appeal. Establishment and proper management of the dispute resolution process are therefore essential to democracy because their absence would render meaningless political rights. Petit provides for general guidelines on resolution of electoral dispute to include: the right to the protection of the law and remedies for violations of their political and electoral rights. This connotes that an individual will be able to invoke legal provisions in his or her favour and also have access to a judicial institution to adjudicate upon the violation of such laws. Secondly, entitlement to address political grievances to an institution with competent jurisdiction. This principle, when assessing a dispute resolution framework, suggests that one should consider whether the system allows individuals aggrieved to seek legal redress from a dispute resolution institution and whether that institution has the mandate to adjudicate upon the dispute. Thirdly, Prompt and timely redress of the grievances. This connotes that the dispute resolution framework be quick and the remedies provided should be time conscious. Fourthly, adjudication of disputes should be effective, impartial and independent. This principle checks whether the institutions are independent of influence from any undue external quota. Lastly is the right to appeal on the decisions made on electoral disputes and clear jurisdiction of the dispute resolution institutions.
These principles are used in this study to assess the quality of the dispute resolution mechanism as provided in the Constitution of Kenya. It is noteworthy that these principles do not have binding authority. However, they have been considered as best practices in electoral dispute resolution by the OSCE which launched them in 1998. This lends credence to them and therefore relevant to this study.
The Right to the Protection of the Law
The law gives the Supreme Court original and exclusive jurisdiction over disputes relating to presidential elections under Article 140. Article 140 provides as follows:
“(1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.
(2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.
(3) If the Supreme Court determines the election of the President elect to be invalid, a fresh election shall be held within sixty days after the determination.”
This provision deals with Petit’s first principle on the right of individuals to legal redress because it allows anyone to file a petition in the Court to challenge presidential elections and also sets out the timelines for doing so. Details on the procedure for presidential election petitions is set out in the Supreme Court (Presidential Election Petition) Rules, 2013. The Rules require that an aggrieved party files nine copies of the Petition supported by an affidavit sworn by the petitioner and must have all documents the Petitioner will rely on.
Right to Redress in a Court of Competent Jurisdiction
The second principle states that an individual has a right to redress in a court of competent jurisdiction. Connected to this is the sixth principle which requires that dispute resolution institutions have clear jurisdiction. Article 163 (3) read together with article 140 of the Constitutions limit the jurisdiction of the Supreme Court to hearing disputes affecting only the validity of presidential elections in the first round. This issue was canvassed in the Supreme Court in Advisory Opinion No. 2 of 2012. The Attorney General had sought the Supreme Court’s opinion on which court would have jurisdiction to hear and determine a presidential election dispute arising out of a run-off. This is because Article 140 only dealt with challenging the first round of elections. The court noted the lacuna in the constitution and assumed jurisdiction over such disputes. At paragraph 102, the S majority of the Supreme Court Judges held as follows:
“Besides, a reading of Article 87(2) alongside Article 163(3) suggests, as we perceive it, that the Supreme Court was intended to adjudicate upon all such disputes as would arise from the Presidential election. We find no reason to presume that the framers of the Constitution intended that the Supreme Court should exercise original jurisdiction only in respect of a specific element, namely, disputes arising after the election – while excluding those disputes which might arise during the conduct of election.”
The Supreme Court in its Opinion, assumed jurisdiction to determine disputes relating to the entire electoral process on presidential elections. In effect, the reading of the Supreme Court of Kenya’s decision ousted the IEBC’s jurisdiction to hear any dispute relating to presidential electoral processes even before elections. According to Alnasir Visram, a Court of Appeal Judge in Kenya, Advisory opinions are not binding and do carry precedential value. They only offer persuasive arguments at the most. The Advisory opinion was adopted in the African Centre for Open Governance (AFRICOG) vs Ahmed Issack Hassan & Another. The Petitioner sought orders from the High Court to stop the manual tallying of presidential ballots during the general elections. The High Court stated that it did not have jurisdiction to hear the matter because the prayers sought would affect the outcome of the presidential elections. It referred the Petitioner to seek redress from the Supreme Court. That case also highlighted the fact that the Constitution was silent on disputes relating to presidential electoral processes that were not challenging the election results. to the extent that there is lacuna in jurisdiction on a wide range of matters surrounding presidential elections, the Constitution fails the test of the second and sixth principles as a result.
Prompt and Timely Redress
The Constitution allows any individual to file a petition challenging presidential results within seven days after declaration of results. Such petition shall be heard within fourteen days. If the election is considered invalid, a fresh election shall be held within sixty days. Petit argues that the dispute resolution process should have pre-determined timelines different from those in civil disputes and preferably shorter timelines. He, however, cautions that a balance should be struck between imperatives relating to the administration of justice in a timely manner within the electoral timeframe and the right to challenge decisions, actions or omissions of the electoral bodies in the fulfillment of their mandate.” This means that Courts should have enough time to consider the applications before them without occasioning undue delays.
The Constitution’s timelines for resolution of presidential electoral disputes is a total of twenty one days and the actual hearing and delivery of judgment is fourteen days. This timelines have been criticised with the latest being from a Supreme Court Judge, Justice Ibrahim who opined that the 14-day period was too short to comprehensively and exhaustively hear and determine a presidential petition. These timelines ought to be reviewed. He proposed a timeline of between Forty Five (45) to Sixty Five (65) days.
Effective, Impartial and Independent Institution
The Constitution provides that the judiciary shall be subject only to it when carrying out its judicial functions. It also provides that the judiciary shall not be subject to the control or direction of any other person or authority. It further provides that the remuneration and benefits payable to judges shall be a charge on the Consolidated Fund. Abuya has argued that the judiciary, as guardians of the constitutions in their countries, must be independent and protect themselves from undue influence from other arms of government. Article 166 of the constitution sets out elaborate qualifications of judges. This appears to be a step towards ensuring competence and effectiveness of the judicial officers. The Constitutional provisions therefore appear to enhance effectiveness and independence of the judiciary.
The Supreme Court has been criticised for its ineffectiveness in adjudicating the presidential election petition by Raila Odinga. Firstly, the Court has been criticised for its reliance on technicalities. Article 159 (2) (d) of the Constitution provides that in carrying out its mandate, the judiciary shall not be encumbered by considerations of technicalities. It places responsibility on the Supreme Court to protect the principles and purposes of the Constitution.
In the Raila Odinga case, the Supreme Court allowed an application to strike out an affidavit submitted by Raila Odinga . The Affidavit contained further evidence supporting his petition. Raila Odinga’s advocates, in opposing the application to strike out the affidavit, relied on Article 159(2)(d) of the Constitution. The Supreme Court struck out the affidavit by holding inter alia that leave ought to have been sought before the affidavit was filed and that the affidavit ought to have been filed earlier. They unanimously held that the import of Article 159(2)(d) did not suggest that procedural technicalities should be ignored.
Odora opines that the Court demonstrated narrow legalism when it rejected Odinga’s affidavit which had additional evidence. The Affidavit was rejected on the grounds that there was limited time to determine the dispute. In his view, the Supreme Court overly relied on the strict timelines and thereby compromised substantive justice. In a statement, the Law Society of Kenya faulted the Supreme Court for the decision to strike out Odinga’s affidavit terming it retrogressive and against the spirit and letter of the Constitution. In their view, the Supreme Court ought to have relied on substantive justice and not procedural technicalities. The decision by the Supreme Court was viewed to threaten the jurisprudential gains made especially by other courts.
The LSK cited the case by Musinga, J who stated as follows:
“While the submission may be right in law, I do not think that in the new constitutional dispensation it can be a ground for dismissing an application for review that is otherwise merited. I say so because Article 159(2)(d) of the constitution of Kenya 2010 requires the court to administer justice without undue regard to procedural technicalities. The inclusion of such a provision was very deliberate and I believe it was informed by public outcry regarding serious injustices that were occasioned to litigants due to the judiciary’s rigid observance of procedural technicalities. If courts continue to accord procedural technicalities undue prominence in administration of justice they will be negating an important constitutional requirement.”
The Supreme Court of Kenya, as the highest court in the judicial hierarchy, set a precedent that negated the spirit of Article 159 (2)9(d). The narrow application of the provision undermined the right to legal redress because it focused on procedural technicalities at the expense of substantive justice. The LSK chairman cautioned members of the bar to restrain themselves from citing the Supreme Court precedent and observed that it ought to either clarify its position or qualify the context in which it limited the application of Article 159(2)(d).
Other reasons posited for Supreme Court’s ineffectiveness arise from arguments that it failed to provide clarity on contentious legal issues. For example, the Court decided that not all votes cast would be considered in the final presidential tally. This was in contravention of the clear Constitutional provisions. Secondly, it has been argued that the Supreme Court relied on bad jurisprudence in making its final decision. Its reliance on jurisprudence from Uganda and Nigeria were erroneous because the two countries are notorious for electoral malpractices. Further , after ordering suo moto the re-tallying of the votes in 22 polling stations, the Supreme Court found irregularities such as missing forms existed and that the polling stations recording voter turnout exceeding 100%. Despite all the irregularities and absurdities, the Court held that the elections were free and fair.
In making its decision, the SCK, maintained that the Petitioners ought to have proved IEBC’s non-compliance with the law and that the non-compliance affected the validity of the elections. The Court established the standard of proof to be applicable in presidential elections petitions as follows:
“…a petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt – save that this would not affect the normal standards where criminal charges linked to an election, are in question. In the case of data-specific electoral requirements (such as those specified in Article 38(4) of the Constitution, for an outright win in the Presidential election), the party bearing the legal burden of proof must discharge it beyond any reasonable doubt.”
Based on the two standards established by the Court, it sought to answer whether the Petitioners had demonstrated that the elections’ outcome did not reflect the expression of the polity. Thiankolu argues that electoral courts ought to exercise restraint in interfering with electoral outcomes. He gives five reasons for the necessity of the restraint. First, invalidating an election may amount to usurping the democratic rights of the polity. Secondly, the electoral processes are susceptible to human errors, all elections would be nullified if all human errors were grounds for nullification. Third, it is meant to avert a situation where there is collusion with electoral officers to provide grounds for nullification. Lastly, it is against public interest to nullify elections at every possible opportunity due to costs and social interference.
The question then is whether the Supreme Court of Kenya correctly applied itself to the facts of the Odinga Case. Shah argues that the discrepancies highlighted by the Petitioners showed that Uhuru Kenyatta received close to 21,000 more votes than he otherwise would have while Odinga received about 11,000 fewer votes than he ought to. In Shah’s view, the outcome of the election would have been different had the court considered these discrepancies because Kenyatta exceeded the 50% threshold by only around 8,500 votes.
Muthomi highlights provisions of Section 83 of the Elections Act which provide that an election shall not be nullified unless the alleged irregularities are so fundamental as to breach the principles laid down by law or whether they affect the final result. These two principals have been termed as constituting the “materiality test” that ought to guide electoral dispute resolution. Did the Supreme Court apply the materiality test to Odinga’s Case?
The Supreme Court of Kenya concerned itself with determining whether the irregularities affected the outcome of the election. In their view, that was the material consideration. In their words:
“Did the Petitioner clearly and decisively show the conduct of the election to have been so devoid of merits, and so distorted, as not to reflect the expression of the people’s electoral intent? It is this broad test that should guide us in this kind of case, in deciding whether we should disturb the outcome of the Presidential election.”
The Supreme Court Kenya did not apply the materiality test on the Odinga Case. Its statement connotes that it was concerned with whether the irregularities were sufficient to dislodge Kenyatta’s election as president. The result of this skewed approach, was to downplay the importance of the principles that should govern elections. Muthomi argues that the Supreme Court would have reached a different decision had it considered these two factors. Further, if the assertions by Shah were true, the Supreme Court would have reached a different decision based on the materiality principle and its own standard. Shah alleged that Kenyatta received about 21,000 more votes than he should have, while Odinga received 11,000 less votes that he ought to. These factors cast aspersions on the effectiveness of the Supreme Court in facilitating free and fair presidential elections in Kenya.
Right of Appeal
Petit views the rights of appeal as an important principle in electoral disputes. In his view, electoral laws should provide for at least one appeal procedure to ensure that a higher court or electoral body reviews all cases. The Constitution of Kenya 2010 gives the Supreme Court original and exclusive jurisdiction over presidential election disputes. Its decision shall be final and not subject to appeal. This calls for re-evaluation because it denies aggrieved parties the opportunity to seek further redress in the event of erroneous decisions by the Supreme Court. Considerations should be made on whether the Court of Appeal should handle the disputes at the first instance.
ConclusionAt the beginning of this Chapter, the internationally accepted tenets of free and fair elections were stated. This chapter has assessed the constitutional framework on presidential elections in Kenya against these standards. In certain instances, the constitutional provisions complied with international standards while in some instances it does not. There are also instances where the constitutional implementation of the provisions do not adhere to these accepted standards.
The study has shown that the legal framework on presidential elections provided in the Constitution to a large extent adheres to the internationally accepted standards. This is to be viewed in the context that the constitutional framework contains the key tenets on presidential elections as internally recognized such as provision for the electoral system, human rights, independence of the electoral management body among others. However, some of the provisions do not adhere to the acceptable standards for example, the study has shown that the current electoral system that allows direct choice of representation by the polity has skewed democracy in Kenya because of the highly ethnicised socio-political environment. The effect is that candidates from populous tribes win the elections while those from numerically disadvantaged tribes are deprived of a fair chance to vie for the presidency. Such a system does not appear to facilitate free and fair elections.
The constitution provides for the right to free and fair elections which is at the core of this study because it makes the concept of free and fair justiciable. It does this by placing responsibility on the respective institutions to facilitate, protect and provide redress when the rights are infringed. The right to vote draws importance from the fact that without it, people will not freely vote for presidential candidates. This study has assessed the legal and institutional framework on presidential elections from nominations, polling, vote counting, tallying, announcement of results and dispute resolution at the Supreme Court. It has also proposed changes relating to timelines for conclusion of presidential election dispute resolution.
CHAPTER FOUR -CONCLUSION AND RECOMMENDATIONS
This study sought to assess whether the constitutional framework on presidential elections facilitates free and fair elections. This study had two secondary objectives: to define the concepts of democracy and free and fair elections and their relevance to Kenyan presidential elections. Secondly, to inquire whether the legal and institutional frameworks in the 2010 constitution is facilitative of free and fair presidential elections. This chapter reviews and summarises the research and its findings. It also highlights the gaps identified in the constitutional framework on presidential elections and makes appropriate recommendations.
The introduction of the study showed that despite regular multiparty elections since 1992, Kenya failed to conduct free and fair presidential elections. This was mainly attributed to poor legal and institutional frameworks. The push for electoral reforms over time had been to establish legal, institutional and administrative frameworks that would adhere to democratic principles. This study found justification in the complaints from several quotas that the elections administered under the new legal, administrative and institutional framework were not free and fair.
Chapter Two of this study has examined the concepts of democracy and free and fair elections. It has also highlighted the provisions of various legal instruments that provide for democracy and free and fair elections. Constituent elements of the concept of free and fair elections have been discussed as posited by different authors and legal instruments. While these authors generally agree that there are varying definitions of the concept, its importance in assessing the quality of elections has been greatly underscored. It is this importance coupled with Kenya’s chequered democratic history on presidential elections that necessitated an examination of whether the Kenya’s new constitutional framework is facilitative of free and fair presidential elections.
In Chapter Three, the study has drawn from international guidelines on electoral processes to evaluate whether the Kenyan Constitutional framework adheres to the standards highlighted in Chapter Two. The Chapter has also borrowed lessons from practices in South Africa, the USA and Peruvia. The study has noted that the Constitutioon generally contains elaborate provisions on presidential electoral process including human rights, However, certain improvements need to be made in order to enhance the Constitution’s capacity to guarantee free and fair elections. The study has demonstrated that there is need for amendments to the constitution to facilitate free and fair elections.
The study has shown that the Kenyan Constitution, in relation to presidential elections, is progressive. This is because it elaborately provides for political rights, sets out basic processes and standards to be adhered to in presidential elections. Specifically , it mandates parliament to make laws specific to the electoral processes and provides an institutional framework to support its ideals. It is noteworthy that the Constitution considers free and fair elections not just as a standard of electoral processes, but as a justiciable right. These are critical principles essential in facilitating free and fair elections.
The spirit of the Kenyan constitution generally envisages the conduct of free and fair presidential elections. However, as the study has shown, some of its provisions such as the requirement for 48,000 supporters to nominate the presidential candidate, failure to provide clear jurisdiction of the Supreme Court, provision for progressive realisation of registration of diaspora voters work against its very spirit. The decision of the Supreme Court to impute progressive realisation on the gender parity rule regarding political office needs to be relooked at well. The IEBC on its part has failed to provide adequate facilities to allow persons with disabilities to vote. Additionally, the use of electronic voting system at a time when there are no sufficient infrastructure and systems undermine the requirement of a simple, accurate, verifiable process.
The weaknesses in the legal and institutional framework highlighted above work against free and fair elections by curtailing political rights, limiting transparency and opening up the presidential electoral process to manipulation. To a large extent therefore, the 2010 Kenyan Constitution has not fully succeeded in guaranteeing free and fair elections. Additionally, whereas it provides that legislations be enacted to fill in the gaps, much is left to be desired.
Is all lost for Kenya and the quest for free and fair presidential elections? Woodrow Wilson said, “Democratic institutions are never done. They are like living tissue -always a-making. It is a strenuous thing, this living of the life of a free people.”
In Woodrow’s view, democracy is always a work-in-progress. Gill held that the concept of free and fair elections keeps changing so fast that what was considered as constituting free and fair yesterday may not be so today. The upshot of this conclusion is that changes remains the order of the day in democracies and the journey towards free and fair elections is long. The flaws in the constitutional framework, while undermining free and fair elections, provide opportunities for improvement. This means that Kenya must continue improving the legal and institutional framework on presidential elections.
The first recommendation is for the adoption of an Electoral College system of presidential elections. In the USA where this system has been implemented, it has dealt with challenges such as creating political equality and ensuring that the smaller states are not disadvantaged because of their populations. In Kenya, elections are highly ethnicised. The ethnicisation of elections has resulted in election of presidents from populous tribes. For example, in the Presidential elections of 2013 and 2017, winners emerged from dominant ethnic groups. This results to a feeling of marginalization on the part of the other ethnic groups. The effect of the Electoral College system, if implemented, in Kenya would be to promote equal opportunity for all to vie and possibly win the seat of presidency.
Right to Vote
This study recommends the amendment of the Constitution to provide clear timelines on the implementation of the registration of diaspora voters. The concept of progressive realisation, as the study has shown, is ambiguous and placed no immediate duty on the state. The resultant effect is that the Constitution takes away with one hand what it has purporteS to give. Clear provisions on implementation will compel relevant institutions to implement these laws and thereby accord Kenyans in the diaspora the opportunity to vote. Alternatively, the study recommends that IEBC takes advantage of the period before the next elections and puts in place administrative measures for the realisation of diaspora voter registration.
Another recommendation is for the IEBC and other relevant government departments to implement the clear provisions of the constitution regarding persons with disabilities. The constitution has provided that the disabled ought to be facilitated to enjoy their political rights but this is yet to materialise according to the ELOG Reports on the Kenyan elections. IEBC therefore needs to take requisite administrative action to comply with the Constitution. Failure to do so continues to undermine the rights of the disabled and democratic principles.
The study proposes that the Constitution should be amended to provide for compulsory voting by citizens in general elections. This enhances popular participation because the candidate chosen would, to a large extent, represent the will of the majority of the people. This, however, must be viewed subject to the recommendation that the electoral system should be changed to allow for a system where the president is elected through an electoral college.
Lastly, the State should consider legislating on automatic voter registration at the point of application for identity cards. This will ensure that as many Kenyan citizens are registered as voters. It will also assist in the implementation of the constitutional requirement for continuous voter registration because it will address the logistical and human resource challenges experienced in facilitating continuous voter registration by IEBC itself.
Legal and Institutional FrameworkSeveral gaps have been identified in the legal and institutional framework provided in this study. These gaps inform the recommendations posited here.
There is need for legislation to provide clear guidelines on the verification of the supporters of presidential candidates at the point of nomination. The study has shown that neither the Constitution nor other laws provide the procedure for verifying the 48,000 voters. The verification of the supporters is critical in ensuring that presidential candidates have met the nomination requirements. More importantly, though, is the fact that unscrupulous officials may take advantage of this loophole to frustrate the right to vie for the position of president. Such a crucial process ought to be legislated upon. The legislation may be included in the Elections Act because it is easier to amend it than the Constitution.
Closely linked to the first recommendation is the need to consider reducing the number of voters required for presidential nomination. The current requirement is 48,000 voters who must provide their identification document numbers, voter’s card numbers and their signatures. The need to balance between demonstrating that a candidate has popular support must be weighed against facilitating the right to vie for the presidency. As it is, it appears punitive and may discourage potential candidates.
Thirdly, there is need for clarity on whether all votes cast ought to be considered in the final presidential vote tally or only valid votes. The Supreme Court in the Odinga Case held that only valid votes could be used in the final tally of presidential elections while the Constitution provides for all the votes cast. The Supreme Court therefore sets a precedent that is in conflict with the clear provisions of the Constitution. For clarity, the Supreme Court, being the highest court in in the land ought to correct this position. The importance of clarifying this position is for purposes of providing certainty in tight elections with probabily of run offs..
Another recommendation closely linked to the third recommendation is that the Supreme ought to consider the narrow and retrogressive application of Article 159(2) (d). The Supreme Court is the highest court in the land. Its decisions are binding on the lower courts. As suggested by the LSK Chairman, the Supreme Court should either qualify its decision or revise it.
Lastly, this study recommends that the IEBC should implement a voting system that is in compliance with constitutional provisions and standards. The Constitution provides that the electoral system ought to be simple, secure, verifiable, accurate and accountable. The study has shown that the systems procured by IEBC in the March 2013 and August 2017 general elections did not meet these standards. The systems implemented at the various stages of the elections failed and opened up the presidential vote tallying to allegations of interference. Electronic systems have also been heavily criticised casting doubt as to their credibility and the capacity of the country to handle such crucial electoral processes. Such systems also undermine free and fair elections. This study has demonstrated that electronic systems are susceptible to breakdown, manipulation and inefficiencies. The study, however, does not recommend abolition of electronic systems; it cautions that should they be used again, measures should be put in place to ensure they meet the standards set in the Constitution.
Matters for Further ResearchThis study was limited to assessing whether the constitutional frameworks on presidential elections facilitate free and fair elections. The study also limited its scope to the roles of the IEBC and the Supreme Court of Kenya. The Study has concluded that there is need for further reforms in the constitutional framework on presidential elections. However, reforms would not be complete if the other political offices and laws are not examined. There is therefore need for further research to assess whether the entire legal and institutional frameworks in Kenya facilitate free and fair elections. Such a study would encompass other elective offices such as members of parliament, senators, women representatives, governors and county representatives. It would also look at the other laws such as the IEBC Act, the Elections Act and the Political Parties Act. It would also consider institutions such as political parties, the office of the Registrar of Political parties and the media. A more holistic study will provide additional pointers on the reforms required to make the Kenyan electoral system adhere to international principles on democracy and free and fair elections.
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