Unrealistic timelines to blame for Kenya’s electoral shortcomings

Friday February 3 2017

Voter registration at the Makongeni centre in

Voter registration at the Makongeni centre in coastal Kwale County stalled due to technical problems on the BVR kits on January 16, 2017. PHOTO | WACHIRA MWANGI | NATION MEDIA GROUP 

By Gabrielle Lynch

There is a general consensus, at least in the academic literature, that one of the problems with Kenya’s 2013 election was that the electoral timetable became increasingly stretched.

This was an issue for at least two reasons: First, as a result of time constraints — and political difficulties — a number of constitutional clauses and electoral rules and regulations were temporarily put to one side. This included a clause in the country’s new Constitution that “not more than two-thirds of the members of elective bodies shall be of the same gender.”

It also included aspects of the new political parties legislation and the thorough vetting of all aspirants on the basis of their “integrity” in line with Chapter 6 of the new Constitution on “Leadership and Integrity.”

Regarding the gender quota, for example, a Supreme Court Advisory Opinion decided that the rule “cannot be enforced immediately” and was instead “amenable only to progressive realisation.”

However, the Supreme Court also advised that “progressive realisation” should occur between the 2013 and 2017 elections. To this end, the Court clarified that it was their “majority opinion that legislative measures for giving effect to the one-third-to-two-thirds gender principle under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by August 27, 2015.”

No rules in place yet

This deadline has long since passed. Yet, once again, there are no rules in place to ensure that the gender quota is operationalised. As a result, the constitutional clause is likely to continue to be put into abeyance.

Second, the fact that the electoral timetable became increasingly stretched in 2013 meant that there was insufficient time to adequately prepare for the introduction of new technology that was meant to guard against electoral malpractice.

This included the biometric registration of voters to ensure that no individual registered twice. It also included the biometric verification of voters, and electronic transmission of votes from the polling station level to a central database via a specially designed mobile phone application.

The latter was meant to create a provisional set of results that could detect any manipulation of the results when they were aggregated at the constituency and national level.

However, while the biometric registration of voters worked relatively well, the biometric verification and electronic transmission systems broke down.

For many, these shortcomings were directly linked to unrealistically tight timelines. In this vein, the social scientist Joel Barkan reminded us of how individual components, and scaled down versions, of the system had tested fine prior to the 2013 election.

Repeated overestimation

But “in the rush to put the many thousands of moving parts together, the system as a whole failed. Simply stated, the IEBC was overwhelmed by the challenge of completing too many tasks in too short a time.”

In short, according to Barkan, “the most serious failing of the IEBC” in 2013 was “the repeated overestimation of what could be accomplished by election day, even as the original deadlines for setting up the IT systems for voter registration, voter sign-in, and results-reporting continued to be missed.”

In response to these problems, a clear electoral timetable was set ahead of Kenya’s 2017 election. This timeline was informed by a number of pieces of legislation including the Elections Act (No. 24 of 2011) as amended by the Election Laws (Amendment) Act (No. 36 of 2016).

With other deadlines set by the Election Campaign Financing Act (No. 42 of 2013), as amended by the second Elections Laws Amendment Act; the Election Campaign Financing (Amendment) Act (2016); and the Political Parties Act (No. 11 of 2011). Together, these set out what is nominally a strict timetable, mostly defined in terms of days before the general elections.

Thus, according to this initial timeline, which is now in flux following a more recent amendment of the Election Act, biometric technology was to be procured eight months before the election (i.e. on December 8, 2016), with technology then tested and verified at least 60 days before the election (i.e. by June 9, 2017).

At the same time, the date of the election is set by Kenya’s 2010 Constitution, which provides for a general election on the second Tuesday in August every fifth year. In turn, while the first elections under the new Constitution were delayed until March 2013 on the basis that the Constitution was inaugurated mid-electoral cycle, this provision is generally taken to mean that the next elections for all elected positions will be held on August 8, 2017.

Extended timelines

To change the date of the election would thus require a constitutional amendment —requirements for which are set out in Chapter 16 of the Constitution.

Much of the initial timeline for 2017 still lies in the future. This includes, for example, the requirement that all public servants intending to stand for election resign from their posts six months before the election; or that political parties submit their membership lists to the IEBC 90 days before the election.

However, other deadlines in the original timeline have passed or are looming. Moreover, while some of these will be revised in the new amendments, or can be updated and revised moving forward, the problem is that extended timelines were meant to provide adequate time to plan for things like the implementation of new election technology.

Already some issues — such as the gender quota — will be put to one side again, while others will be put under severe strain. This does not mean that 2013 will repeated and that the new technology, for example, is doomed to fail. On the contrary, many lessons have been learned and we are still six months away from the next election.

Instead, it is important to highlight the possible implications of increasingly tight timelines. This is particularly so for things like biometric verification of voters and electronic transmission of votes, which are notoriously prone to breakdown.

It thus raises questions about the costs of insisting — as some members of Kenya’s political opposition are currently doing — on electronic technology without a manual backup. Especially since, as Nic Cheeseman reminds us, “the use of digital verification was not a legal requirement in any of the three countries — Gambia, Ghana and Nigeria — in which the incumbent presidents have recently been defeated at the ballot box.”

Gabrielle Lynch, Associate Professor of Comparative Politics, University of Warwick