PUBLIC PARTICIPATION IN THE 2007 ELECTORAL PROCESS
4.1 Introduction

IREC is required by term of reference 1(c) to examine public participation in the 2007 electoral process and the electoral environment, including the roles and conduct of political parties, the media, civil society and observers. A peaceful and successful electoral process is dependent on the faithful discharge of duties and obligations by all. The wananchi were fertile recipients of whatever ideas carried the day in the marketplace of politics. Political parties hugely mobilised their supporters and a record turnout of voters was recorded. The media, fully liberalised and jostling for prime reportage, kept the public glued to television screens. FM stations transmitted vibrant call-in dialogues in the various languages of our communities throughout the entire electoral season. Civil society took the electoral message to the grassroots.

But there was a dark side too. Divisive tribal sentiments propagated by political parties and their supporters were spread and relayed to the public by the media. Civil society was accused of partiality; the faiths abandoned the true message, instead leading their flocks to their respective ethnic nests. Observers to some extent assumed the role of participants, with regrettable consequences. The electoral environment was expectant and fully charged. The ECK, as discussed elsewhere in this report, was ill-prepared to deal with the challenge of its lifetime.

This chapter interrogates the roles of the various constituents. It is a dialogue also with each other as each constituency tells the other what worked and what did not.
4.2 The role and conduct of political parties

The Constitution under section 123 recognises political parties which register as provided by law and comply with requirements of the law as to their constitutions or rules for nominating candidates for the National Assembly. Section 17 of the National Assembly and Presidential Elections Act (Cap.7 of the Laws of Kenya) governs the nomination of candidates for the National Assembly and presidential elections. The Local Government Act (Cap. 265) makes a similar demand of political parties with regard to nomination of candidates for local authorities. Until 30 June 2008 political parties were registered under the Societies Act (Cap 108).

Political parties are an essential component of Kenya’s electoral system. The Constitution provides that party sponsorship is a prerequisite in presidential, parliamentary and civic elections: independent candidates are not recognised. Political parties represented in parliament nominate candidates to the National Assembly in proportion to the seats won at elections. Political parties, therefore, are the only vehicles for political representation. Indeed, under section 40 of the Constitution, members who resign from their parties lose their parliamentary seats.
4.2.1 Evolution of Kenya’s political parties

The party system in Kenya is nascent. While in the older western democracies parties evolved over several centuries as mass parties, the experience in Kenya has been that parties are either owned or ultimately controlled by individuals. The Kenya African National Union (KANU) was founded in 1960 and formed the first government at independence in 1963. In the years following, apart from some brief periods in the 1960s, other political parties were excluded from competitive politics. From 1982 to December 1991 Kenya was a de jure one-party state. Following the registration of a number of political parties, and a split in the Forum for Restoration of Democracy (FORD), at the time general elections were held in 1992 there were ten political parties. KANU won the election on a plurality.

In September 1997 Parliament adopted the recommendations of the Inter-Parties Parliamentary Group (IPPG) for reforms that were to be enacted before the 1997 elections. As a result of one of the recommendations, sixteen new parties were registered. Fifteen presidential candidates were nominated in all. The incumbent, Daniel Arap Moi, won with slightly over 40% of the vote. Opposition politicians realised that the only way to gain power successfully was through alliances, which has been the pattern since. Thus, prior to the 2002 general elections, alliances were formed, notably the umbrella opposition electoral platform, the National Rainbow Coalition (NARC), whose presidential candidate, Mwai Kibaki, was victorious.

NARC largely remained a conglomeration of some fourteen distinct parties but soon after Kibaki was sworn in, internal squabbles arose. Following the constitutional referendum in 2005, a dissenting faction broke away from the Kibaki administration. After the defeat of the banana (“yes”) side in the referendum, Kibaki reconstituted the cabinet and excluded all the dissentients. In August 2007, as the general elections approached, the Party of National Unity (PNU) was formed as the banner under which Kibaki would stand for re-election. Several parties joined the coalition while retaining their separate identities. Controversy surrounding the nomination of parliamentary and civic candidates resulted in many politicians, on failing to get a PNU nomination, securing nomination instead by their individual parties.

In early September 2007, one of the factions in the Orange Democratic Movement-Kenya (ODM-K) took over an earlier registered party, the Orange Democratic Movement (ODM), and nominated Raila Odinga as its presidential candidate, while ODM-K nominated Kalonzo Musvoka as its candidate. The three main contestants in the presidential contest were eventually Kibaki (PNU), Odinga (ODM) and Musyoka (ODMK). Nine parties fielded presidential candidates, 117 parliamentary candidates and 118 civic candidates. Several reasons, including protracted power-struggles within parties, ethnicity, personality differences, personal ambitions and self-preservation, have seen the number of parties registered in Kenya grow from ten in 1992 to 160 by the end of June 2008.

The electoral campaign was, as is shown elsewhere in this report, extremely robust and at times violent and unruly. Indeed, this was no surprise. Political parties in Kenya have over decades been guilty of such conduct. Comparison with the well-known and respected Code of Conduct for Political Parties Campaigning in Democratic Elections published by the International Institute for Democracy and Electoral Assistance (International IDEA) shows that they have been breaching each and every international norm for many years. To cite a few examples:

* Recognise the right and freedom of all other parties to campaign, and to disseminate their political ideas and principles without fear.

* Use its good offices to ensure reasonable freedom of access to all potential voters.

* Ensure that none of its supporters are permitted to do anything that is prohibited.

* Organise and conduct its election campaign in a congenial and peaceful atmosphere.

* Avoid using language that is inflammatory or threatens or incites violence.

These internationally recognised norms have also been routinely breached in relation to the polling and counting processes, for example:

* Co-operate with election officials to ensure peaceful and orderly polling, and freedom of voters to exercise their franchise,

* Not procure votes by forcible occupation of polling stations or through illegal activities in polling stations.

* Ensure the safety and security of electoral officials before, during and after the polls, and not interfere unjustifiably or in bad faith with the duties of election officials.

* Respect and co-operate with official or accredited election observers.

* Maintain and aid in maintaining the secrecy of the vote.

* Accept the outcome of an election that has been certified.

* In the event of grievance, submit any grievance only to the relevant dispute settlement agency.

* Accept and comply with the final decisions of the dispute settlement agency.

There has also been scant respect for international norms relating to abuse of state resources for political advantage:

* Not abuse a position of power, privilege or influence for political purpose by offering a reward, threatening a penalty or by any other means.

* Not use official state, provincial, municipal or other public resources for campaign purposes.

* Not coerce or offer monetary or other kinds of inducements to persons to stand or not to stand as candidates.

4.2.2 Political parties as tools of governance: the Kenyan experience

An examination of political parties in Kenya (as at 30 June 2008) reveals that they are, as currently constituted, incapable of providing democratic space to their membership. By and large, they are characterised by lack of transparency in choosing leaders. Elections for office- bearers are rarely held or when held are cosmetic and therefore undemocratic. As a result, leadership is often arbitrary, autocratic and unaccountable. Parties are also dogged by flawed and poor party nomination rules and processes. The leadership interferes with party electoral processes, especially in nominating candidates for elective positions. After an analysis of the 2007 parliamentary and civic nominations by political parties, the Centre for Law and Research International (CLARION), a Kenya-based NGO, observed that numerous direct nominations were given to candidates mainly in PNU and ODM. In the result, other candidates who wished to contest the elections in these parties had to seek alternative parties or desist from vying altogether. The report argues that some candidates got certificates because of their “good connections” with the party headquarters, party election boards and/or party leaders.

Parties are formed merely to serve as vehicles for elections. A vibrant membership is the energy that drives a party and therefore members ought to be recruited on a continuous basis. Kenyan parties, however, lack an identifiable party membership and in 2007 anyone who had a voter’s card could participate in the nominations for all political parties in the constituency. Parties have historically been aligned to the seven or eight numerically dominant ethnic groupings.

During the electoral period, parties consistently lack respect for laws or regulations and the Electoral Code of Conduct is blatantly violated. The ECK has confirmed to IREC that the few politicians who were fined for breaches under the code in the run-up to the 2007 general elections have refused to pay the fines. ECK has had to file proceedings in the High Court in order to enforce its orders but to date these cases remain undetermined. Parties condone, without censure, their candidates’ violation of electoral regulations. For example, a report of the “National Voter Bribery Survey” indicated that up to KSh 907 million may have been spent in bribing voters (Daily Nation, 30 November 2007). Parties also suffer an endemic lack of equality and equity in the representation of women, persons with disabilities and other special interests.
4.2.3 How political parties conducted themselves in the 2007 elections

The verdict by election observers: Election observer groups and citizens closely monitored political parties in the 2007 general elections and their assessment of the conduct of political parties is largely damning. The Commonwealth Observer Report states that many party leaders (particularly among the opposition) began their campaigns in an unofficial sense after the 2005 Referendum. Campaigns were generally largely personally driven, with little interest in the party manifestos. Ethnic violence was one of the negative aspects. At certain times there were clashes between party supporters and also even intraparty clashes.

The report also cites abuse of state resources for party political purposes, such as use of official vehicles during campaigns. The observers noted reports of vote-buying and exceptionally high campaign expenditure. They also reported overcrowding in polling stations by dominant parties’ agents, many of these without visible identification. Both PNU and ODM were castigated for holding press conferences and announcing their own final results for the presidential race, each claiming victory. While all parties generally called for calm, these actions appear to have led to significant unrest on the streets.

The European Union Election Observer Mission (EU EOM) reports that primaries for parliamentary and civic elections were seriously marred by irregularities, chaotic administration and interference from party headquarters in individual constituencies. Unsuccessful aspirants and their supporters protested against both the process and the outcome, in some cases violently. Many MPs from the previous parliament who failed to gain nomination defected so as to accept nomination by smaller parties. The lack of permanent party structure and membership was seen as the cause of the incapacity of political parties to conduct primaries. The confusion of the primaries led to a number of complaints being lodged with the ECK, which, however, ruled that many of the complaints were misdirected in terms of the respective parties’ rules.

With regard to campaigns, the EU EOM reports a generally free environment, but strong ethno-political polarisation particularly between supporters of the two main contenders created a hostile atmosphere towards the other side in their respective strongholds. Candidates distributed money and goods widely, an activity that appears to be entrenched in the political culture of the country. Parties played in a populist way with the fears and aspirations of the voters where issues such as devolution were concerned.

The Kenya National Commission on Human Rights (KNHCR) in its monitoring report dated August 2008 names numerous ministers of government and other public officers who misused and misappropriated public resources in furtherance of partisan politics for the incumbent administration. Over thirty incidents are cited. It also gives examples of hate speech on the campaign trail. With regard to nominations, the report cites four constituencies where party leaders imposed on the electorate candidates who had failed in the primaries.

The East African Community Observer Mission reported that political parties exhibited varying states of unpreparedness and that there was re-alignment of political parties and party affiliations during primaries. It also reported instances of political intimidation at various polling stations throughout the country.

The Pan-African Parliament Election Observer Mission reported agitated political party agents engaging ECK officials at the national tallying centre in heated confrontation, in some instances becoming physical among political players.

The verdict by wananchi: The wananchi expressed several concerns over the conduct of political parties during the pre- and post-election periods. These are views that IREC captured during its public meetings around the country. Voter bribery, vote-buying, electoral violence and voter intimidation were rife during the 2007 elections. There were also complaints of the widespread use of hate speech by politicians and harassment and intimidation of party supporters, especially women, by supporters of competing parties. Owing to many reasons, including violence during party nominations, there were few women candidates. There is consensus that political parties lack democratic practices. The wananchi from Garissa specifically complained that the multitude of parties confused them.

What political parties think of themselves: Counsel for both PNU and ODM presented IREC with the political parties’ views on how parties conducted themselves in the 2007 elections. A telling submission read that “political party leaders in Kenya are their own worst enemies, the parties are seen as an end in themselves rather than a means to an end”.

It is common cause between ODM and PNU that nominations have always been marred by blatant rigging and allegations of rigging, and that the 2007 nomination exercise was no different. These parties also agree that the primaries are the “real” election because, if a candidate is nominated in a constituency by a popular and dominant party, the seat is as good as won. Political parties, however, do not have adequate financial, infrastructural and manpower resources to organise primaries. As the funds to sustain parties and manage processes are donated by individuals, the nomination process becomes an endorsement affair. In the meanwhile, “briefcase” political parties engaged in political mercantilism by camping outside ECK headquarters offering losers an alternative platform to pursue their political ambitions. There were also cases of parties issuing nomination certificates to multiple candidates, the ECK then accepting the first candidate to present his/her certificate. The “big” parties waited until the last minute to carry out their nominations to stall party-hopping by those not selected. The ECK’s planning, and particularly its printing of ballot papers, was therefore hampered.

The parties considered the 2007 elections the most competitive in Kenya’s history. In the campaign one of the dominant parties pronounced through its presidential flag-bearer that these elections would be “the mother of all battles”. Some parties complained that the incumbent president was misusing government resources and civil servants holding high positions in government were deployed in partisan campaigns. Ethnic hate speech and stereotyping was propagated and communities living outside their “indigenous” provinces were threatened with eviction. There was “zoning” too, which meant that dominant parties’ strongholds were out of bounds to the opposing party candidates. Incessant claims of rigging and highly inflammatory language were heard several months before the polls. Some weeks to polling day, there were a number of reports of party supporters being maimed or killed for wearing their party apparel or campaigning in opposition territory. Several administration policemen were killed in Nyanza province for being suspected PNU agents, an allegation the PNU and the government denied, saying that the officers had been deployed to oversee security in the handling of electoral documents.

A charge was levelled against the ECK itself. Early in 2007, and again shortly before the elections, new commissioners had been appointed by the President without consulting other political parties in the spirit of the Inter-Parties Parliamentary Group (IPPG) agreement. The ECK could therefore, so it was contended, never be impartial. After the announcement of President Kibaki as winner of the presidential poll on 30 December 2007, ODM publicly rejected the result as fraudulent and declared that it was not possible to receive justice from a partisan judiciary that was known to subvert justice in electoral matters. They also viewed the appointment of judges on Christmas Eve as preparation for a biased consideration of the anticipated election petitions.

In conclusion, political parties breached most of the rules in the national and international books regarding the orderly conduct of campaigns and elections. While Kenyans must improve the entirety of the regulatory regime that currently governs elections, the greater challenge is to inculcate an ethical and responsible political culture. The culture of impunity maintained by all political players would certainly strain any law-enforcement mechanisms that are established.
4.2.4 Regulation of political parties

Until 30 June 2008 political parties were regulated in a laissez faire manner. The operative statute was the Societies Act. Registration of political parties was the responsibility of the Registrar of Societies, an officer in the Attorney-General’s office. Everyone was free to found a political party, the Act largely treating political parties as mere societies. Even though the Registrar had powers to refuse to register a society if satisfied that it did not exist (section 11(2)(e)), there are still many registered political parties that exist only in name which the Registrar did not seek to deregister..

The Political Parties Act (PPA) came into force on 1 July 2008 and seeks to address some of the problems inherent in political parties. The office of Registrar is created to manage the provisions of the Act. This is, however, to be an office within the structure of the ECK. A political party’s registration is to be denied where membership is restricted to or includes only members of a particular ethnic, age, tribal, racial, gender, regional, linguistic, corporatist, professional or religious group or if the proposed party’s structure or mode of operation is not national. The initial registration by the Registrar is provisional and is given within thirty days if all conditions are fulfilled. To gain full registration a political party must have obtained membership signatures in each province of at least two hundred voters registered for parliamentary elections and the governing body must include a member from each province who is ordinarily resident or registered to vote in that province. Existing parties are required to apply for full registration under the Act within six months.

Upon full registration a political party must submit a written declaration of its assets and expenditure including all contributions, donations or pledges of contributions or donations. The declaration must state the sources of all funds and assets. A fully registered party loses its status as a political party or body corporate if it has not participated in a parliamentary or local government election for a period of six years or where it fails to participate in the next general election following its registration. Coalitions must deposit their instruments with the Registrar for purposes of arbitration.

A most important innovation is that the Act establishes a Political Parties Fund, 15% of which is to be distributed equally among political parties, 85% proportionately to the total number of votes secured at the last general election by each party’s candidates and 5% retained for administration of the Fund. The Act in addition lays down the various purposes for which such funding may be used. The accounts of political parties are to be audited annually by the Auditor-General and the audit reports forwarded to Parliament and the Registrar.

The Act could be misused to offer people a financial benefit for registering a party. Many people would happily pay to have a party registered if they could then share equally with all other parties in the 15% distributed equally under section 30(3)(a) of the new Act. The formation of parties could arguably be discouraged by devising barriers, such as requiring a fairly large deposit in order to be allowed to participate in an election. This could be coupled with a requirement that a given number of signatures of voters registered in the particular constituency have to be lodged at the time of nomination of a candidate.
4.3 Role and conduct of the media

There cannot be free and fair elections unless freedom of information is secured and the media allowed to operate without undue hindrance.

The 2007 elections were held amid unprecedented media attention. The print and electronic media sought to outdo each other in election coverage from the campaign stage right through to the transmission of election results. The elections came at a time when the media arena had been fully liberalised. The consequence was the entry of exciting new players, mainly in the form of frequency modulated (FM) radio stations. Many of these went straight into interactive vernacular radio broadcasting complete with call-in facilities. Millions of anxious and excited Kenyans who for years had been only passive listeners to one state-owned radio station could now access a wide choice of radio stations including those that broadcast in their respective home languages.

ECK accredited 2,964 local and international journalists to cover the 2007 elections. Accredited journalists were given ECK election kits, including Media Guidelines, and were briefed by the ECK. Training and orientation was carried out by the Media Council of Kenya (MCK), the consultant for the Media and Elections Project managed by UNDP.
4.3.1 The regulatory framework and international standards on the behaviour of media during campaigns and democratic elections

The Constitution in section 79 secures the individual’s freedom of expression and freedom to receive ideas and information. The Media Act 2007, the first attempt at self-regulation for the media, set up the MCK as the professional enforcement body. The second schedule to the Act sets out a code of conduct for the practice of journalism which emphasises the main tenets of ethics in journalism including accuracy and fairness, independence, integrity and accountability.

Kenya is also a signatory to several international and regional conventions that secure the freedom of expression. These include the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the African Charter on Human and People’s Rights and the Declaration of Principles on Freedom of Expression in Africa. This last stipulates that any restrictions on the freedom of expression must be provided by the law and must serve a legitimate interest that is necessary for a democratic society.

The ECK’s media guidelines highlight the following:

* a direction to the Kenya Broadcasting Corporation (KBC) to comply with the provisions of its constituting Act

* a responsible media that provides fair and impartial coverage to all contestants

* upholding standards by journalists

* resisting bribery

In September 2007 media correspondents in Kenya published a guidebook on election coverage in Kenya which covers salient principles of ethics in journalism including accuracy, impartiality and fairness.
4.3.2 The Kenya Broadcasting Corporation

The Kenya Broadcasting Corporation (KBC), a State corporation established during one-party rule, existed as a broadcasting monopoly and was widely viewed as a propaganda arm of the government. It was therefore hardly surprising that KBC came under serious criticism over the way it covered the 2007 general elections. The station was specifically accused of favouring PNU. Aggrieved political parties raised their concerns with ECK but it had neither the power nor the resolve to force KBC to change and merely issued statements agreeing with the complaint of the opposition parties. Equally controversial was the official announcement of the presidential results via KBC. The swearing-in of the president, also carried live by KBC, was unacceptable to some Kenyans. Much of the criticism of KBC has arisen not just from its former monopoly status but also because of its strategic position as the only broadcaster covering virtually the entire country and its failure to make a clean break with the past.

The station has been reluctant to act independently and, since it is a creature of the political establishment, its management, operations and funding have been at the mercy of the government. Its board of directors is chaired by a presidential appointee, board members are appointed by the minister in charge of information and its managing director by the minister in consultation with the board.

Fairness in electoral competition requires that candidates be given reasonable access to those media channels that are more likely to be the most effective in delivering their arguments to the voters, and particularly when that channel happens to be public.
4.3.3 Opinion polls

The impact of opinion polls on the outcome of the 2007 presidential elections was controversial. While politicians sought to downplay the significance of opinion polls on the outcome of the presidential race, it was obvious that the polls were being taken seriously by political campaign strategists, voters and even the presidential contestants.

Every time the various poll results were released, a storm brewed. Opinion polls conducted within the last three months before the 2007 elections confirmed the prediction that the elections would be a hotly contested affair between Kibaki and Raila.

In the public meetings held by IREC many Kenyans doubted the value of opinion polls. Some even averred that the polls were manufactured by partisan pollsters in order to influence them to vote one way or another. Several interlocutors proposed that if opinion polls could not be avoided altogether, then they should cease several months ahead of the poll. Many Kenyans took a different view: the polls predicted that their particular presidential candidate would win the election: this did not happen: therefore the elections must have been rigged.

While a ban on opinion polls would be an infringement of the freedom of expression and of the citizen’s right to receive information, there could arguably be justification for some limited regulation. The solution should not, however, be sought in regulation but in maximising journalists’ skills and knowledge vis-à-vis electoral reporting. The media should be adequately briefed on both public opinion and exit polls; forums should be arranged, if necessary by the ECK, to interrogate the authors, producers and sponsors in open debate, the debates in themselves becoming opportunities for educating voters and training journalists.
4.3.4 Hate speech

In the run-up to the 2007 elections and in their aftermath, political leaders and Kenyans at large were guilty of a truly alarming level of hate speech. Manifestly degrading, intimidating and inciting language targeted Kenyans on the basis of their gender, age, ethnicity, religion, socio-economic class and political views, and was aired by the media uncurbed. Several FM stations are allegedly owned by politicians. Responsibility for these unacceptable broadcasts could be enhanced by lifting the veil on ownership of such media. Regulation of the freedom of expression is covered in chapter 5 of this report. It suffices to state here that this all- important right should be explored substantively in the constitutional review debate and a full discussion of hate speech legislation by all stakeholders should be encouraged.
4.3.5 How the media conducted itself

The media made a commendable contribution to voter education and civic awareness. The country enjoyed the highest voter turnout in its history. During IREC’s public meetings many people hailed the media for being vigilant and exposing rigging and malpractices. Other Kenyans expressed the view that the media had betrayed the people of Kenya. Yet others appeared to be appreciative of whatever media was available to them and had no complaints at all – this was the case in Garissa, Mandera and Wajir. The EU EOM reported high levels of neutral and positive media coverage of the election preparations and candidates.

The banning of live coverage after the announcement of presidential results was perceived as suspicious, wrong and provocatively high-handed. IREC’s impression is that this ban was a kneejerk reaction by securocrats who did not deign to consult the ECK, which was supposed to be in charge of the whole electoral process, including the crucially important tallying and announcing component being conducted at the KICC. This action may well have contributed inadvertently to the eruption of violence. Indeed the information blackout, engrafted on to the ECK’s lamentable failure to keep the people of Kenya informed, could well be seen a direct link in the chain of causation that led to the tragedy. The ECK and the security agencies knew that rumours of rigging had been flying for months. Tensions had risen alarmingly and the ECK knew, or should have known, that only transparent truth could save the credibility of the elections and defuse the dangerously charged atmosphere.

Views expressed by electoral observers: The EU EOM report states that:

* There was an absence of a satisfactory degree of equitable coverage on a number of radio and television stations in breach of the MCK’s code of ethics.

* KBC’s coverage demonstrated a marked failure to fulfil even its minimal obligations as a public service broadcaster.

* KBC Radio’s English- and Swahili-language services also demonstrated a high level of bias in favour of the PNU coalition of partners.

* Vernacular radio stations’ coverage demonstrated a tendency to grant greater access to the parties and candidates with close links to the tribal and political affiliations of their listeners.

The Commonwealth Election Observer Group on Kenyan Elections 2007 observes that in the lead-up to the elections, the MCK and the ECK developed guidelines aimed at ensuring responsible media coverage, upholding professional standards, impartiality and independence. These were, however, often flouted. The observers particularly noted the unethical publishing of anonymous advertisements by some media houses.

The verdict by media consultants: Strategic Public Relations and Research Limited, the media consultant for the media monitoring project under the UNDP-managed Electoral Assistance Programme made the following findings in its final report:

* Even though the leading newspapers, television and radio stations were not very openly biased for or against any of the candidates, there were discernible preferences shown by the tilt they gave in favour of or against the candidates and their campaign issues.

* In the run-up to the elections there was silent endorsement by the various stations and publications of the various parties and candidates. KBC showed obvious preference for President Kibaki and PNU with consistent coverage of over 50% of air-time with the other parties and candidates sharing the rest. The FM stations and the print media gave preference to either one of the two candidates.

* The amount and nature of coverage given to the main parties and candidates significantly improved in balance and fairness after the bias was reported in the initial presentations.

* Election-day coverage concentrated mainly on the occurrences at individual polling stations with reports of sporadic violence invariably reported by the media.

* As election results started trickling in, the stations competed with each other to be the first to announce the results from various constituencies. Some stations relied on unspecified sources to broadcast and announce results ahead of the ECK.

* Most media houses avoided hate speech but several FM stations incited ethnic animosity, particularly during call-in programs.

The MCK, the consultant for the UNDP-managed Media and Elections Project, noted the following challenges:

* Prevalence of untrained people practising as journalists in media houses, and particularly reliance on correspondents who in most cases were untrained.

* Media owners who influenced the content and facilitated bias towards specific political parties and candidates.

* Embedding of correspondents with politicians.

* Partisan vernacular FM stations.

* Religious broadcasters who exhibited clear bias in favour of certain candidates and political parties.

* Corruption of journalists covering elections.

* The conflict between profit-making and adherence to the ethics of journalism.

The verdict by wananchi: In the IREC public meetings there was trenchant censure of the media: partisanship, bias, factual incorrectness and even false reporting; communication of unsubstantiated and unverified results and allowing parties to announce winners and losers; propagation of hate campaigns and messages (especially in the case of FM stations); politically divided newsrooms where story-lines would depend on which news anchor was on shift; blogs that were intensely tribal and exacerbated negative ethnic feelings.

IREC’s review of newspaper coverage during 2007 revealed many instances in which highly sensitive stories were reported in language that had the potential to heighten public anxiety. An egregious example is this report in The Standard on 26 December 2007:

“Apart from what our undercover team witnessed, an AP officer, who was drafted into the squad, turned up at KTN studios yesterday and gave fresh insights into the plot…Last Saturday, KTN ran an exclusive story on how some 2,500 APs were being trained to interfere with tomorrow’s General Election…This was after a whistleblower leaked information to the station that some police officers were allegedly marking ballots at the AP Commandant’s house in Embakasi and at the fourth floor of Harambee House… The Standard established that the recruits held Bibles then uttered the following words in unison: ‘I …swear that I will not at the General Election taking place on December 27, 2007 do anything forbidden by Section 5 of the Election Offences Act which has been read to me.’ Sources said this vow, which is the standard ECK pledge, was taken to make them look like just harmless agents…”
4.4 Role and conduct of civil society, faith-based organisations and election observers

A vibrant civil society is a vital player in checking the excesses of the State through advocacy and lobbying. Kenya has enjoyed an energised civil society particularly from the early 1990s, when this segment of society contributed immensely to the interventions that led to the restoration of multi-party democracy. Civil society organisations (CSOs) have since continued to play an invaluable role in sustaining a growing democratic culture. CSOs, including faith- based organisations (FBOs), contributed immensely in the promotion of voter registration. They also participated in the election observation process. The visibility of civil society in an electoral observation process is critical in ensuring compliance and respect for the rule of law and deterring irregularities. A consistent and effective domestic observation programme is one of the key components in measuring electoral performance and enhancement of frameworks, monitoring use of public resources for private benefit, assessing media coverage; checking electoral violence and observing party behaviour and voter attitudes.

“Vijana Tugutuke Ni Time Yetu”, a process funded by AUSAID, recorded great success in voter education and promotion of voter awareness, particularly among the youth. Under a community-based voter education programme funded through the United Nations Development Programme Joint Donors Elections Assistance Programme (UNDP EAP), the ECK approved 42 civil society voter education facilitators. They included those able to operate at grassroots community level using locally identified educators.

The UNDP EAP co-ordinator, while reporting a very successful outcome that far exceeded expectations, noted that voter education was started only near election time. As a result, partisan political messages tended to compete with wholesome voter education messages. IREC also noted complaints by some CSOs that they were unfairly excluded from participation as voter education facilitators. While the ECK explained that the exclusion was by reason of failure to qualify on neutrality, it was not clear what criteria it applied to determine that issue.
4.4.1 Electoral observation

International IDEA defines electoral observation as the purposeful gathering of information regarding an electoral process and the making of informed judgments about the process on the basis of the information collected. Electoral observers will usually be domestic, regional and international. Election observation may be either short-term, covering election-day activities, or long-term, covering all the phases of the electoral process from evaluating the existence of an enabling environment to the processing of post-election complaints and petitions.

One of the most common purposes of electoral observation is to assess the legitimacy of an electoral process. In most cases, only long-term missions with significant resources can effectively reduce fraud and manipulation. Electoral observation may also help build and reinforce democratic practices and institutions. It may also contribute to the resolution of conflict or to the solution of technical problems. Observation organisations may also mediate or provide assistance if requested by the observed target. In sum, electoral observation ought to be the impartial barometer that evaluates whether elections have been credible, free and fair. It must, however, be noted that the impact on legitimation is not always achieved by carefully thought-out reports, based on the information collected by observers and carefully analysed and chronicled by the media. Nor should it be assumed that the higher the quality and accuracy of the information on which the report is based, the greater the impact on public opinion. Opinions are in many cases shaped by observer mission statements issued shortly after polls close and based rather more on overall political evaluation of the after-poll situation than on careful and detailed analysis of the information collected by the observer mission.

The ECK accredited 24,063 election observers. These included 15,000 local observers under the Kenya Elections Domestic Observation Forum (KEDOF) (which, however, itself cites a figure of 16,595). The international and regional observer groups accredited included the European Union, the Commonwealth International Conference of the Great Lakes Region, the East African Community and the Independent Republican Institute (IRI). The ECK gave all observers accreditation badges and bags containing election materials which included the guidelines on observation. The observers were expected to be impartial. They were also expected to have the financial and logistical capacity to carry out the observation process. IREC has found these observer reports very helpful.
4.4.2 Domestic observers

An evaluation of the genesis of national election observations establishes that in all cases observation groups are born out of the suspicion that the government of the day will be involved in fraudulent manoeuvres, and that the monitoring role of party agents will not be sufficient to provide adequate safeguards. There are many examples that indicate a close connection between domestic observers and the opposition. This does not, however, mean that domestic observers are necessarily partial or biased. They have also on occasion proved their impartiality by helping a winning incumbent reaffirm the legitimacy of the victory.

A key component of the preparations for the December 2007 elections was the organisation of effective domestic observation. Domestic observation is crucial in assessing the fairness, transparency and effectiveness of general elections. Over the years, domestic observation has been increasingly influential in facilitating citizens’ active participation in elections and holding of their leaders to account.

In consultation with stakeholders, the UNDP EAP identified a technical planning group representative of professional, religious, youth, women’s, disabled and marginalised groups and organisations working in the area of governance, elections and domestic observation. The partnership operated under the name Kenya Elections Domestic Observation Forum (KEDOF). Its mission was to observe and determine the credibility, peacefulness, freeness and fairness of the 2007 general elections. KEDOF intended to deploy over 35,000 trained observers/ poll watchers but only some 16,000 were in fact deployed, of whom 3,000 failed to submit their observation checklists after the exercise.

KEDOF faced serious challenges. There was deep-seated antagonism within KEDOF between a number of groups, each of which felt it was uniquely placed to manage the coordination and funding. Its work was dogged throughout by internal differences, weak leadership and delayed implementation. The EAP report states that KEDOF “reflected in microcosm the ethnic, political, personality and other divisions that exploded so dramatically after the election”.

Granted the challenges that KEDOF faced, it is not surprising that its final report remains unpublished. A draft of the report was, however, made available to IREC at the eleventh hour, has been taken into account to the limited extent possible.

The KEDOF case is particularly unfortunate as domestic observers enjoy several advantages over international ones. KEDOF had the potential to convert itself into a formal long-term institution with strong structures and the ability to mobilise increased human and financial resources for long-term observation of future elections. Setting up an entirely new organisation will be time-consuming and most likely suffer the same turmoil of infancy that KEDOF suffered. The ability to attract future funding for similar activities is also a concern. The real threat to this enterprise, however, is the strong interest nurtured by organisations for separate reporting to reinforce organisational identity and increase media exposure.
4.4.3 The regulatory framework and international standards on the behaviour of election observers in democratic elections

International IDEA, in its Code of Conduct for the Ethical and Professional Observation of Elections, enumerates some basic principles which include respect for the observation target’s sovereignty and culture and a faithful, comprehensive and accurate account of the events. To like effect the Principles for Election Management, Monitoring, and Observation in the SADC Region recommends inter alia that all observer missions:

* ensure that participants declare any conflicts of interest prior to taking part in the mission

* produce and distribute widely impartial, credible and professionally written press releases and interim and final assessment reports

* refrain from actions that could lead to a perception of sympathy for a particular candidate or political party

* uncover and make public any observed irregularities and malpractices in the electoral process for possible redress by the relevant institutions

The ECK Guidelines for Election Observers sets out the role, rights and privileges of observers comprehensively and gives a summary of principles and practices for election observers, which by and large accord with the international principles.

The Presidential and Parliamentary Elections (Amendment) Regulations 2002 mandate the ECK to accredit individuals and organisations to act as election observers and to issue guidelines accordingly.

IREC considers that the current regulations that govern the conduct of election observers are adequate as drafted. The ECK should undertake a neutrality test for all persons seeking accreditation as observers and enforce the regulations properly. IREC has not identified a single case where the ECK withdrew the accreditation of an observer or even sought to enforce some of the key provisions in the regulations.
4.4.4 Complaints against CSOs and election observers

The ECK has to date received eleven observer reports. The ECK made the submission to IREC that some observers turned into monitors and some showed open support for certain political parties and their respective candidates. They demanded to talk to department heads and commissioners of the ECK and further demanded confidential documents such as budgets for various election programmes. Some foreign missions purported to act as monitors while they had not even been granted observer status by the ECK. ECK Commissioner Tumwa, under cross-examination at one of IREC’s formal hearings, singled out part of an EU EOM press statement regarding the Molo presidential results which trashed the results that ECK had just announced. The passage in the Mission’s preliminary statement on 1 January 2008 (EU EOM) reads:

“The 2007 General Elections have fallen short of key international and regional standards for democratic elections. Most significantly, they were marred by a lack of transparency in the processing and tallying of presidential results, which raises concerns about the accuracy of the final result of this election. … Serious inconsistencies and anomalies were identified in the results announced by the ECK. For example, in Molo and Kieni, there were significant differences between presidential results reported by EU EOM observers at the constituency level and results announced by the ECK at national level. Additionally, at the ECK headquarters, the EU EOM Chief Observer was shown forms on which the election results for constituencies 205 (Lari) and 096 (Kandara) had been changed. It was unclear by whom, where, and especially when these changes were made … Furthermore for Kerugoya, EU observers reported a discrepancy of more than 10,000 votes in the official turnout given for Presidential and Legislative elections.”

Some observer reports published locally and internationally had the potential of exacerbating an already intensely volatile post-election period. The most potent and influential of these is a document authored by some four domestic election observers, titled Kenyans for Peace with Truth and Justice (KPTJ): Kenyan Elections Observers’ Log: December 29-30, 2007. Under the sub-title “Countdown to deception: 30 hours that destroyed Kenya”, the authors made a number of bold and emotive statements, some of which, unfortunately, lack a credible basis. Others evidence a basic misunderstanding of the procedure they had observed. They reportedly “noticed transgressions at once brazen and shocking” with regard to the presidential ballot tallying. They referred to “invented figures”, in reference to Molo constituency, and further that the ECK did not “provide any evidence to the contrary” when faced with a complaint that in 48 constituencies results had been reported without supporting documents and Kibaki’s votes had been inflated. The document was reproduced widely by the international press and has become the received wisdom on the subject. In annex 4.A IREC provides an analysis of the KPTJ document, pointing out the various mistakes and misunderstandings that have been identified.

The ECK is largely to blame for these mistakes and misunderstandings. Against the advice of experienced external advisors, it rejected the announcement of “partial” or “progressive” results that would have kept data flowing from the constituencies by the morning of 28 December 2007. Instead the ECK, realising the need for expeditious announcements, (a) opted for a system of announcing results based on faxed or phoned-in data, which was inherently prone to misinterpretation by the uninformed, and then (b) failed to explain the system adequately, not only to political parties, observers and other members of the public, but even to its own staff. The resultant torrent of vilification to which it was subjected was not entirely undeserved.

The IRI, in a report, quoted with approval the testimony of David Mozersky, Horn of Africa Project Director, with regard to “election fraud” and rigging by both PNU and ODM. Further that:

“the results were arbitrarily changed to give President Mwai Kibaki a 230,000-vote victory. The disappearance of returning officers in PNU strongholds in particular ... and lack of either stamps or proper signatures of party agents on the statutory forms presented in the last two days of the count are damning indications of rigging.”

The Law Society of Kenya (LSK) in its preliminary statement of 7 January 2008 concluded that the 2007 elections:

“marked an unfortunate and sad step backwards in the process of the death and strangulation of democracy in Kenya and that Mr. Mwai Kibaki was illegally and/or illegitimately in office ... [his] conduct of the elections was below and under the expected international standards ... because the final tabulation and tallying of the Presidential votes was done fraudulently leading to a hasty swearing in of an illegitimate president. The elections also showed a number of shortcomings especially on the part of the Electoral Commission of Kenya inter alia ... ignoring its Returning Officer in charge of Molo at KICC, who was trying to say that the results being announced were not those that he had recorded and announced at his constituency.”

The LSK reference to the Molo returning officer and his identity in the above statement is factually incorrect. The bona fide returning officer for Molo, Mr Laban Arupe Korellach, testified at the IREC formal hearings that he was shocked when friends called on 30 December 2007 to inform him that there was an impostor at KICC passing himself off as the returning officer for Molo.

Political parties’ verdict: While ODM in its submissions to IREC did not have any complaints regarding observers, both local and international, PNU submitted that the observers were biased. PNU recommended that the electoral observation guidelines be strictly observed in accordance with the law.

Wananchi’s verdict: During IREC’s public meetings countrywide, many Kenyans expressed the view that religious leaders right across the country were partisan, depending on their ethnic community. Kenyans across the political divide also stated that many of the accredited CSOs used the opportunity to propagate partisan ideas under the guise of educating citizens on their civic duties.

With regard to election observers and civil society, PNU’s supporters accused observers of having been partisan, unprofessional and interested only in furthering their selfish agenda. It was averred that both domestic and international observers, including ambassadors, openly supported one political party and therefore did not give an objective assessment of the elections. NGOs were also reportedly biased in their involvement in the process and their final evaluation. It was further averred that some of the NGOs were specifically constituted for the purposes of advancing partisan positions in the 2007 general elections and that thereafter they ceased to be operational.

Recommendations

Concerning nominations Concerning media
i) IREC recommends that a standing liaison committee be set up comprising
the ECK and political parties as a first step towards the enactment of
nomination rules which must be strictly adhered to
ii) IREC recommends that once Parliament has been dissolved, no more
political parties should be registered and no new symbols allocated
iii) IREC recommends that campaign period be specifically defined to assist
the ECK in ensuring compliance with the Electoral Code of Conduct
iv) IREC recommends that the election date should be pre-set, taking into
account all the required timelines for efficient conduct of the elections
v) ECK should enforce the provisions of section 17 of the National Assembly
and Presidential Elections Act and the Local Governments Act (Cap. 265),
which empower it to deny political parties’ nominations made contrary to
their own constitutions or nomination rules
i) The MCK should oversee the conduct of media and enforce its Code of
Conduct
ii) IREC recommends that a media and elections policy should be developed,
to include guidelines for verifying data before going on air, vetting of live
broadcasts and screening of paid-for advertisements, responsibility to
announce accurate results and training of journalists on the Electoral
Code of Conduct, and elections reporting and the manner of reporting on
opinion polls
iii) IREC recommends that disclosure of the real owners of media be made on
a regular basis
iv) IREC recommends that KBC Act be amended to provide the ECK with the
commensurate power to compel KBC to act in accordance with the law
v) IREC recommends that mechanisms be set up to ensure the independence
and public accountability of KBC
vi) IREC recommends that access to KBC by the Presidential Press Service
be reviewed, particularly in an election year
vii) IREC recommends that key provisions in the KBC Act pertaining to free
access slots for party political broadcasts be clarified and precisely
defined as to the rights of the parties and candidates in law
viii) IREC recommends that a substantive Act prohibiting hate speech be
drafted and enacted
Concerning CSOs and EOs

i) IREC recommends that the ECK and CSOs be encouraged to work together, particularly in voter education in an arrangement whereby the ECK coordinates and CSOs provide delivery

ii) IREC recommends that ECK’s selection of ECK trainers and facilitators should be done through a transparent process and the criteria for a neutrality test determined in advance and published

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

iv) IREC recommends that a permanent domestic observer group should be constituted comprising diverse civil society interests

v) IREC recommends that co-operation and co-ordination of observer groups, local, regional and international, be encouraged.

vi) IREC recommends that the Regulations be amended to provide for observation of the tallying process at all levels and provide copies of all authentic statutory forms to observers