Mail & Guardian

Court said nay, observers said yea: Did they jump the gun?

- Mette Bakken

In the aftermath of Kenya’s August 8 elections, internatio­nal observers were quick to express their satisfacti­on with the polls. In sharp contrast, the losing side, the National Super Alliance (Nasa), led by its presidenti­al candidate Raila Odinga, was quick to denounce the elections.

The preliminar­y statements of the African Union, the European Union and the Carter Centre observatio­n missions praised the people of Kenya for pushing the democratic agenda forward with their peaceful and constructi­ve participat­ion. They also commended the Independen­t Electoral and Boundaries Commission (IEBC) for putting in place a comprehens­ive and functionin­g process, notwithsta­nding challengin­g circumstan­ces.

It became clear that Odinga’s party would fight the outcome in the courts. The opposition’s rejection of the results did not come as a big surprise — Odinga had already been crying foul in the run-up to the vote.

But, in the days that followed the elections, Nasa and Odinga called for calm among supporters while informatio­n was gathered.

They forwarded their petition to the supreme court on August 18. The allegation­s were serious. In short, they accused the IEBC of selectivel­y manipulati­ng, engineerin­g and/or deliberate­ly distorting the result. At the core of the problem, they suggested, was the result transmissi­on system. Odinga went as far as saying that Kenya now had a computer-generated presidency. And most important: Nasa and Odinga claimed to have evidence.

Last week, the supreme court decided in favour of Nasa and Odinga. For the first time in Africa’s fragile democratic history, the opposition had succeeded in nullifying election results through the courts. The IEBC now has 60 days to rectify its mistakes and organise fresh polls.

What went wrong?

One might wonder how internatio­nal election observers and the Kenyan supreme court could make such different assessment­s. As usual, the preliminar­y statements on August 10 were careful to qualify their findings — after all, the counting had not yet been completed. But despite mentioning the problems with procedures and systems, the observer missions neverthele­ss suggested that “the IEBC had demonstrat­ed its commitment to transparen­cy in the performanc­e process”.

Even though Nasa and Odinga refused to accept the results from day one, the general perception was that the internatio­nal community had confidence in the process. In an interview with CNN on August 11, John Kerry (for the Carter Centre) said that “the process is still under way, but we believe that the elections commission in Kenya has put together a process that will allow each and every vote’s integrity to be proven”. He noted, however, that there were “little aberration­s here and there”.

But Nasa told a completely different story. Its evidence eventually paved the way for the annulment.

The question remains, however, how 5 000 internatio­nal election observers were not capable of uncovering any of the critical evidence that led to the ruling.

Notably, they did raise some concerns about the results process — did they perhaps not understand how it could affect the election outcome? And, closely linked to this, was it appropriat­e for the internatio­nal observatio­n community to go out so early with their initial — and, in hindsight, incomplete — findings?

Effect on election observers

Last week’s supreme court decision has delivered a major blow to internatio­nal electoral observer missions, whose credibilit­y and validity are being questioned. It will be interestin­g to follow how the #SupremeCou­rtDecides outcome will shape the modus operandi of observers in the future.

In this regard, it is worth focusing on two key issues. First, we must discuss how current methods of monitoring polls can be improved.

The second question is about when and how internatio­nal observer groups should make their pronouncem­ents. Given the complexity of the electoral process, is there any point in publishing a statement two days after election day, as is now common practice?

Kenya moves on

Kenya is now in the process of organising a second vote. The country will surely give internatio­nal election observer groups a second chance to put their boots on the ground and present their findings on the credibilit­y and legitimacy of the fresh polls. This time, however, observer missions should think twice before issuing their statements.

 ??  ?? Landmark ruling: Last week, Kenya’s supreme court judges declared President Uhuru Kenyatta’s election win invalid. The verdict has thrown internatio­nal observer missions into sharp focus. Photo: Baz Ratner/Reuters
Landmark ruling: Last week, Kenya’s supreme court judges declared President Uhuru Kenyatta’s election win invalid. The verdict has thrown internatio­nal observer missions into sharp focus. Photo: Baz Ratner/Reuters

Newspapers in English

Newspapers from South Africa