5.1. Introduction

This analysis of the organisation and conduct of the 2007 general elections will follow the standard sequence of the electoral process. It will thus cover boundary delimitation, voter registration, candidate nomination by political parties, electoral preparations (dealing with both voting materials and recruitment and training of temporary staff), voter information and education, regulation of political campaigns, regulation of freedom of expression and equitable access to media, the technical assistance received by the Electoral Commission of Kenya (ECK) and the management of election day operations. It does not include a discussion of the organisational structure of the ECK, which was the subject of chapter 3, nor of the counting and tallying of results, which will be analysed in detail in chapter 6.

Although the central concern of this chapter relates to the 2007 elections, it is necessary to review the evolution of each of the subjects since the advent of multiparty elections. Many of the problems experienced in 2007 were already identified in previous elections, but nothing was done to solve them. The depth of treatment is differential, coverage being more extensive in areas where problems are identified. Recommendations are reserved for the last section.

1. Delimitation of boundaries

2. The fundamental tenet

The fundamental tenet of democracy is the statement in article 21 of the Universal Declaration of Human Rights: “The will of the people shall be the basis of the authority of government; this will 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 principle is repeated in many other international instruments.

Proportional representation (PR) electoral systems aim to ensure the equality of the vote, at least to a considerable degree. However, in the case of systems based on plurality (or majority), as is the case in Kenya, the drawing of constituency boundaries is a central issue. There are several related aspects that will be analysed in this section:

* the reasons for departure from the principle of equal votes, and the extent of such departure

* the number of constituencies, and whether the allocation of seats is directly done for the entire country, or in two stages, beginning with an initial allocation to provinces/states

* the frequency of re-delimitations, and the authority responsible for such

5.2.2 Reasons for departure from general principle

Practically all legal electoral frameworks establish equality of the vote as the main principle, and enunciate several reasons for departure. Kenya is no exception. Section 42(3) of the Constitution requires that “All constituencies shall contain as nearly equal numbers of inhabitants as appears to the [Electoral] Commission to be reasonably practicable, but the Commission may depart from this principle to the extent that it considers expedient in order to take account of (a) the density of population, and in particular the need to ensure adequate representation of urban and sparsely- populated areas; (b) population trends; (c) the means of communication; (d) geographical features;

(e) community of interest; and (f) the boundaries of existing administrative areas….” [emphasis added].

5.2.3 Limit of permissible departure

Both the principle and the reasons for departure are standard in comparative practice but there are significant differences in the extent of the permitted departure from the basic principle of equality of the vote. The USA is the classic example of allowing only minimal departure from the average. The Supreme Court, in Karcher vs. Dagget, considered that even a 0.7% deviation from the mean was unacceptable. The UK is probably the case were the largest departures are admitted: up to 25%.

The problem in Kenya is that the maximum permitted departure is not fixed and has been seen to allow extreme differences in size: Embakasi is 351% greater than the average while Lamu East is only 18% of the average. As a consequence, the weight of the vote cast by a Lamu East voter is nineteen times greater than that of one in Embakasi. In no other country in the world is the difference of such magnitude. The reasons for the present situation are related to the introduction of the multiparty system – the skewed size of constituencies was related to the splitting up of small and sparsely populated constituencies in KANU strongholds of Rift Valley, Western, North Eastern and Coast provinces. The lack of a maximum permissible departure has led the High Court to task the ECK with ensuring the representation of rather small ethnic minority groups on the occasion of the next redelimitation of boundaries.

5.2.4 Redelimitation

In Kenya any increase in the number of seats must be approved by Parliament, but the ECK can proceed with redelimitation if the number is not changed. In 2006 the ECK made an attempt at delimitation, based mostly on the subdivision of the largest constituencies, but Parliament refused to accept the increase in the number of seats. Although the Constitution empowers the ECK to do so, it shied away from redelimiting constituencies while maintaining the 210 limit.

As to the principles to be applied, the basic one, as argued above, is the equality of voting strength. Subsidiary criteria to be considered are those established in the Constitution – density of population, demographic trends, means of communication, geographical features, community of interest and boundaries of existing administrative areas. Other principles that should be respected in the process are those enunciated by the Southern African Development Community (SADC): management by an independent and impartial body that is representative of the society, comprising persons with the appropriate skills, conducted on the basis of clearly identified criteria (such as those listed above), made accessible to the public through a consultation process, devoid of manipulation to favour political groups or political interests, be conducted by one body and include all spheres of government, both national and local.

Findings: The delimitation of boundaries in Kenya as presently established does not respect the basic principle of the equality of the vote. The differences are unacceptable in terms of international standards. The Kenyan legal framework does not establish, as is accepted international practice, the maximum possible departure from the principle of equality of the vote. The delimitation of constituencies is left to the ECK, which has not performed its role adequately, ascribing its non-performance to Parliament’s reluctance to increase the number of constituencies.

5.3. Registration of voters

According to section 32 of the Constitution, a person is entitled to vote in a constituency if s/he is registered in such constituency as a voter (with a few standard disqualifications). The qualifications established involve residence (at least five months in the twelve preceding months), conducting business or being employed in the constituency for similar periods, or possessing land or residential buildings there. The qualifications for voting in the civic elections are quite complex, but in practice they are not applied by the ECK.

For the first multiparty elections in 1992 the ECK conducted a national registration drive. The data of registrants was entered in the so-called “black books” from which mimeographed lists for use at the polling stations were derived. In 1997 the ECK computerised the registers using optical mark recognition (OMR) forms, although the black books were kept as a back-up. The 2002 elections were based on the 1997 register, updated in registration drives in 2000, 2001 and 2002. The use of black books was forbidden in those elections. (The same approach was to apply in the 2007 elections but shortly before the elections it was decided that black books could be used as back-up.)

Thereafter the 1997 register was further updated through continuous registration (introduced in 2002) and yearly registration drives. In 2007, the ECK conducted a massive registration effort, which took place in 20,655 centres. There were two registration drives in 2007, from 1 to 30 March, reinforced by a second drive from 11 June to 31 July (with 30-day inspection periods following each drive). The unusually long period of registration (67 days) produced good results. The number of registered voters increased by 1,767,212, resulting in a total number of voters for the 2007 election of 14,296,180. This represented 71% of the 19.8 million persons over 18 years of age who had been issued national ID cards. In 2007 the Government had acquired equipment which enabled it to produce national ID cards in large numbers, which facilitated the access to the ID cards by many young Kenyans. The average productivity of the registration teams was exceptionally low, however, only 1.1 registered voters per day per registration team (and just 0.8 in the first of the two periods).

5.3.1 Evaluation of voter registration

The introduction of continuous registration, perceived as a forward step in 2002, has in practice created a system that combines the cost of both the periodic and the continuous systems of registration. It has resulted in an extended network of district offices whose main purpose, in non-election years, is registering voluntary applicants. But the ECK still conducts yearly registration drives that in magnitude and cost are similar to those conducted in the case of a periodic register.

The system as it exists today is open to serious criticism:

* Continuous registration has not worked – only 2% to 3% of the registration took place at the ECK offices. The ECK alleges that this is because the number of field offices is too small (and aims to have an office in each constituency). This is not correct: a significant proportion of the Kenyan population lives within a reasonable distance of an ECK district office (located in populated areas) yet only a minimal fraction of that part of the population opts to register at ECK field offices.

* The system has very low productivity. During the 2007 registration drives before the elections, the average number of voters registered per registration centre was about one per day. The productivity of the continuous registration is even lower. In the four months after the 2007 elections, the ECK network of offices recorded 553 transactions, of which only 129 were new registrants (the rest being transfers, detected deceased voters, etc.). This means that the ECK offices conducted only one transaction every two weeks per office.

* The voter register has a low and biased coverage. Registered voters represent only 71% of the 19.8 million persons over 18 years of age who were issued national ID cards. Women are significantly under-registered: they represent 51.4% of the population and only 47.1% of the voter register. Worse, the proportion has been declining: in 1997 the proportion of women in the register was 47.9%. Young people are similarly under- registered: the proportion of persons between 18 and 30 years of age is 46.2% of the population and only 32.1% of the registered voters. Furthermore, the deletion of names of deceased voters from the register is ineffective: the Central Bureau of Statistics estimates that 1,733,000 persons have died since 1997 but the ECK has been able to eliminate the names of only 513,000 deceased persons from the register. Statistically, therefore, the names of some 1.2 million dead persons swell the voter register.

* There is an almost complete lack of controls by the ECK. One of the main reasons for maintaining a voter register is that the verification of entitlement to vote is conducted in advance, as it takes significant time to verify residence, etc. The ECK system operates entirely on trust regarding residence. Form B (application to register as an elector) includes a declaration of residence, but no further proof is required, nor does the ECK conduct any post facto investigation or any other form of verification (except for the notoriously ineffectual period for exhibition of the list of registered voters).

* The system is outrageously expensive. The cost of the field offices, mostly devoted to voter registration in non-election years, was KSh 309 million in 2006 and it is expected to reach KSh 377.4 million in 2008. The cost of the 2006 registration drive was KSh 412.2 million, the two registration drives in 2007 required KSh 2,179 million and the allocation for voter registration for 2007/2008 is KSh 596.6 million.

The present situation is far from adequate, and there are three possible change strategies, depicted in the figure below:

The first two alternatives can be discarded. It would be very difficult and expensive to improve the efficiency of the continuous approach, and the move to periodic registration, even if efficient, would be perceived as a backward step. A permanent solution will necessarily involve moving to an alternative system, based on other population databases, particularly that related to the national ID card and, when implemented, to the proposed Integrated Population Registration Systems (IPRS). Further detail is provided below under the heading of recommendations.

Findings: The continuous registration of voters introduced in 2002 has not worked, as the number of people who register at the ECK district electoral offices is minimal. The available evidence suggests that the solution will not be found in increasing the number of offices, as the ECK suggests, but rather in a change of system. The voter register, as is stands today, has a low and biased coverage, as women and youth are heavily underrepresented. The registration system is outrageously expensive and has very low productivity. The permanent solution will involve moving to systems based in other population databases, including the transfer of ECK human and financial resources to support the prompt implementation of such solution.

5.4 Nomination of candidates

As Kenya does not currently have provisions allowing the participation of independent candidates, only candidates nominated by political parties are eligible to contest presidential, parliamentary and civic elections. Nomination is an important stage in the electoral process not only because of eligibility to participate in the contest but also because, in certain party strongholds, it may very well be a straight ticket to winning the seat. Be that as it may, the election that ensues from the nominations is as good as the nomination process itself. If the nominations are marred by violence, this feature often continues into the election campaign, especially if the loser defects to another party (as is usually the case) and obtains a ticket to remain in the race. The legal standard for a valid nomination is established in the Constitution (sections 5 and 34) and the Local Government Act (section 53), as read together with section 17 of the National Assembly and Presidential Elections Act. As long as the nomination in question has been conducted in accordance with the constitution or rules of the political party concerned and is certified by a person whose specimen signature has been deposited with the Commission, that nomination will be deemed valid.

Nominations by Political Parties: In 2007 the nomination of presidential candidates went without much incident, save for the fall-out in the Orange Democratic Movement-Kenya (ODM-K) over the party flag bearer, and the eventual departure of Mr Raila Odinga and his supporters to the Orange Democratic Movement Party of Kenya (ODM). The Party of National Unity (PNU) had a short while before settled on Mr Mwai Kibaki as its flag-bearer. The presentation of nomination papers by the respective presidential candidates took place on 14 and 15 November 2007. There were no major problems and, of the sixteen aspirants who presented their nomination papers, the ECK accepted those of nine.

With respect to the parliamentary and civic elections, ECK’s statutory notice required political parties to nominate candidates to contest the elections by 16 November 2007 and to send certified lists to the ECK headquarters by 19 November 2007. ODM and ODM-K set 16 November as the date for their primaries, coinciding with the ECK deadline, while the PNU nominations were held over a number of days between 14 and 16 November. In anticipation of defections to their parties after these nominations, the smaller parties outdid each other in promising the losers an easy alternative eligibility vehicle to participate in the electoral race.

All the parties conducted the primaries themselves using party rank and file officials and other people hired for the purpose. From observers’ accounts, citizens’ views obtained during IREC’s public hearings and political party submissions, it is clear the nomination of parliamentary and civic candidates was decidedly not without incident. According to media reports, the primaries of the major political parties were chaotic and marked by logistical challenges. Claims of vote-buying were rife. In others there were claims that the real winners had been replaced by others. Some candidates received “direct nomination” after their parties waived the requirement for primaries in their constituencies, eliciting protests. Not unsurprisingly, some of these problems culminated in violence. In some cases, this violence sealed some aspirants’ fate, when their parties denied them nomination certificates on account of sponsoring and/or being engaged in violence.

Disputes arising from the nominations: A number of complaints were filed with the ECK, while some candidates actually went to court. While the ECK originally set up a nine-member committee to listen to aspirants’ complaints, it later decided the complaints were misdirected (since the proper forum for these complaints was the respective dispute resolution bodies established under each party’s constitution or rules) and disbanded the committee. As for the court cases, many failed to surmount the now well-established judicial view that the only option open to aggrieved aspirants was to file an election petition after the election – and were dismissed – while others were overtaken by events as the cases had not been heard by the time their opponents were gazetted as the candidates.

Owing to the proximity of the primaries to the deadline established by the ECK, most parties were late in submitting their certified lists of candidates. The ECK agreed to shift the deadline by a few days and the candidates’ nomination papers were formally submitted to the ECK on 23 and 24 November 2007. A total of 117 political parties sponsored some 2,547 candidates in the parliamentary elections alone.

Findings: Party nomination exercises in Kenya have traditionally not been without fault. The shortcomings discussed above are not restricted to the 2007 primaries but are part of a decades-long, probably longer, experience in conducting party primaries. The standard of validity established by the law, namely the certification that the certified nominee was chosen in the manner provided by the party’s constitution or rules, does not seem to provide adequate protection for people who invest considerable sums in electoral contests (in the form of nomination and other fees) and yet are robbed of their entitlement by party gatekeepers.

Moreover, the time between the party primaries and the ECK deadlines has been shrunk by the parties over the years so as to preempt defections engineered by the opposite side. This has made it almost impossible for the party machinery to respond adequately and timeously to all complaints arising from the nomination exercise. Even assuming they had, the time left for judicial review, if any aspirant is still dissatisfied with the decision of the electoral court, is almost non-existent.

The legal standard for valid nominations does not seem to take into account the primacy of fair nomination procedures for the fairness of the overall election itself, even as established in the constitution and rules of the political party. For instance, if a party were to write in its constitution or rules that a nomination certificate will be handed out to the candidate who pays the highest amount as nomination fees, would this not be something that a tribunal should be empowered to look into? As a result the rights of aspirants are not only routinely violated, but some of this manoeuvring at the party political level (e.g. violence) gets carried through to the election and generally breeds impunity in the electoral process.

5.5 Electoral preparations

5.5.1 Voting streams

As the number of registered voters in some of the registration centres exceeded the maximum number established by the ECK, the voters were divided into “streams” (or polling stations within a centre) and allocated to one or the other according to the first letter of their surnames. This caused confusion. Voters were not properly informed of the stream to which they were allocated; some streams ran dry while others were backed up. This trivial issue had more publicity than it warranted because it temporarily embarrassed a presidential candidate.

5.5.2 Ballot papers

Ballot papers were printed in England and arrived in time despite a minor hitch caused by the belated withdrawal of an identified ballot supplier. It is noteworthy, however, that the ECK saw fit to send some nine commissioners, two senior ECK officers and a Government Printer representative on a mission to the UK – lasting several weeks and during the crucial run-up to the elections – on the strange basis that they were needed to supervise the chosen expert printers in the printing and packing of the ballots. Save for the printer, none of the delegation appears to have had any appropriate training or experience that could have equipped them for this task, which could and should in any event have been done perfectly simply and quickly – and at a fraction of the cost – via the internet. Indeed, external consultants had suggested the development of a database from which master ballots could have been printed.

5.5.3 Design of forms

There were substantial problems with the forms used. Although it had been agreed that form 16A should include the results both in numbers and in words, to avoid mistakes or fraud, the procurement section of ECK apparently ordered forms using the old model (which included only numbers). It is also normal good practice to have the names of the candidates pre-printed in the counting forms, but this was not done. The ECK’s excuse that there was not enough time since nominations were too close to the elections is not valid in the case of the presidential contest; in the other elections it would also have been possible, provided the sequence of activities had been adequately planned. The real reason for not pre-printing names seems to be that the forms had already been ordered and distributed long before.

It is also customary that the forms used at the polling station, and distributed to agents, are printed on self-duplicating paper, so as to avoid writing several copies separately. Similarly, it is customary to provide agents with tally sheets, which they can use to record the votes when the counting is conducted at the polling station.

5.5.4 Staff recruitment and training

The most serious deficiency in the electoral preparations related to the recruitment and training of temporary electoral officers. The ECK, like other election management bodies (EMBs), follows a pattern of seasonal surge and contraction of its staff, in accordance with the needs of the electoral calendar. At key periods in the electoral process, i.e. during voter registration, polling and counting, it recruits several categories of temporary personnel in addition to its headquarters secretariat staff and the permanent field staff. In preparation for the registration of voters, the ECK engages registration officers and assistant registration officers, registration clerks, trainers and support staff. To meet the demands of polling, it engages returning officers, deputy returning officers and assistant returning officers at the constituency level; presiding officers, deputy presiding officers and polling/counting clerks for each polling station, nomination clerks and trainers, among others. In addition to these essentially field-based personnel, its headquarters staff is also reinforced as needed (for example, logistics and warehouse personnel, data entry staff and other tallying centre staff). The ECK also recruits “code of conduct enforcement officials” who serve on the peace committees.

The manner in which all such staff are selected, trained and deployed can have a significant impact on the quality and credibility of an electoral process. In fact, the process of recruiting temporary election personnel and arrangements for their orderly and timely remuneration, quite apart from the quality of the electoral operations themselves, have been known in other countries to mar electoral processes and contribute to a fractious security situation. The perception, by the selected personnel themselves or those who are not selected, that the selection process or the management of the staff while in employment has not been transparent can also have negative effects on elections.

As with most EMBs, the ECK has developed job descriptions and qualifications requirements for each post. The posts are advertised, and selection panels are set up at each level, as appropriate. Returning and deputy returning officers, for instance, are selected centrally by the ECK itself, from a database of personnel who have had similar experience in the past, as well as fresh applicants who meet the established criteria. It appears that those with prior experience have a clear advantage. Presiding and deputy presiding officers, as well as registration clerks, are selected by a panel established at the district level, comprising the key permanent staff in the district office and the assistant returning officer. The selection is subject to the endorsement of the ECK commissioner having supervisory responsibilities for the district office concerned.

The selected personnel are usually trained by the widely used “cascade” method (training of trainers), given the huge numbers involved. Training takes place reasonably close to the actual activity involved, to minimise loss of personnel and to ensure that the acquired instructions remain fresh in their memories. Observer reports indicate that the selection of staff seemed to have been conducted transparently, though instances of favouritism (in particular tribalism and nepotism) were alleged in some areas. A more worrisome allegation involves the last-minute replacement of some returning officers, apparently by the Area Commissioner.

5.5.5 Recruitment, training and equipping

Considering the electoral process from the perspective of what became its most controversial aspect – the management of the collation, transmission and tallying of results – what causes most concern is the inadequate definition of the requisite qualifications for some key personnel (returning officers, presiding officers) and the non-provision of very basic equipment to facilitate their work. As discussed in a previous section, the decision adopted on 14 June 2007 by the Plenary of the Commission to use laptops and a WAN network for the tallying and transmission of results from constituencies to the national tallying centre required some important innovations in the recruitment and training of returning officers and their staff. It seems that the recruitment and training of those temporary officers did not take into account such decisions, and the result was the reversal of the decision at the last minute. As is analysed in detail in chapter 6, the recruitment of returning officers and their staff did not ensure minimal capacity in handling simple arithmetical operations, as evidenced by the number of errors committed. Furthermore, the lack of calculators in the polling kits (the use of which should have been incorporated into polling staff training) also contributed to a flawed exercise.

Arrangements for the deployment of personnel at the national tallying centre deserve particular mention. From the information available to IREC, it did not seem as if adequate preparation had been made for this part of the operation, especially in terms of definition of clear procedures and training of staff on those procedures. The staff at the tallying centre comprised some fairly senior officers of the ECK, in the role of team leaders, but also included a substantial number of temporary staff, recruited solely for that purpose. Not all staff in the centre had undergone the required training, nor even had all the supervisors. On the whole there is a doubt as to the adequacy of the training, considering the sensitive nature of the assignment. Such an exercise would normally require at least one dry run, not only to test absorption of the information but also to ascertain the adequacy of the procedures established and to make whatever modifications might have been found to be necessary. It would also appear that not all staff members at the tallying centre were following the same procedure, probably as a result of the fact that not all of them had attended the training provided.

Improvements in the selection, recruitment and training of ECK temporary personnel can, along with other reforms, contribute significantly to increasing the institution’s credibility and the transparent management of electoral operations.

5.5.6 Abnormal voter turnouts

A worrisome feature of the 2007 elections was the incidence of abnormally and suspiciously high voter turnout figures reported from many constituencies in certain areas. As discussed above, the deletion of the names of deceased voters from the register was not effective. On the basis of the Central Bureau of Statistics estimates, it is probable that the names of some 1.2 million deceased voters were still on the register. To this should be added that because of the age of the register, the currency of the data is otherwise far from satisfactory and many persons whose names still appear have probably emigrated or moved to a distant location within the country without the changes being processed by the ECK. Over and above these notorious facts of electoral administration, there is always a percentage of persons who do not vote because they are sick, otherwise committed or are temporarily far from the polling station. It follows that the statistical prospect of having voter turnouts higher than 85% is extremely small. The turnout was over that figure in a significant number of polling stations (with many showing voters turnouts of 100%), concentrated in certain constituencies. This clearly suggests the existence of “ballot stuffing”, which requires collusion between the polling station staff – a clear indication of biased recruitment compounded by inadequate training and supervision.

In regard to training, while it is difficult to judge the quality of the training objectively, it is quite apparent that there were cases in which selected personnel did not participate in the entire exercise (including some returning officers).

Findings: Owing to the extensive – and expensive – efforts of the ECK, the registration of new voters in the months before the 2007 general elections proceeded smoothly. There were, however, a number of identifiable problems related to the wasteful supervision of the printing and packing of ballots, as well as with the design of some of the key forms used in the process. However, the worst problems seem to have occurred in relation to the recruitment and training of temporary personnel. The recruitment did not take into account the requirements of the approved method for the tallying and transmission of results at constituency level, as it did not include the required qualifications in the process. This lack of foresight resulted in the reversal, at the last minute, of the tallying process approved months before.

5.6 Voter information and education

Elections are said to be free if the voters clearly understand the election process and are able to exercise their political rights free of threat from intimidation and in secrecy. Therefore voter education and information are necessary to ensure that all voters understand their rights, their political system, the contests they are being asked to decide, and how and where to vote. Voter education needs to take into account factors such as high rates of illiteracy or the use of different languages. Young people eligible to vote for the first time may require special attention, for instance special messages explaining how to register and cast a ballot. Voter education should also include publicity encouraging people to vote.

Voter education addresses voters’ motivation and preparedness to participate fully in elections. It involves more complex information about voting and electoral process and is concerned with concepts such as the link between basic human rights and voting rights, the role, responsibilities and rights of voters, the relationship between elections and democracy and the conditions necessary for democratic elections, secrecy of the ballot, why each vote is important and its impact on public accountability, and how votes translate into seats.

Civic education involves educating citizens about their obligations and rights within a given political or ethical tradition. It is suggested that voter education is an amalgam of voter information and some civic education programmes, specifically those dealing with elections. Voter information refers to basic information enabling qualified citizens to vote, including the date, time, and place of voting, the type of election, identification necessary to establish eligibility, registration requirements and mechanisms for voting.

Promotion of voter education as a function of the ECK is mandated by section 42A of the Constitution and section 15 of the National Assembly and Presidential Elections Act. The ECK undertakes this responsibility with government funding and in strategic partnership with the international donor community and civil society. Civic education is also implemented by civil society, political parties and candidates, media and religious institutions. The ECK is required by law to co-ordinate those organisations/ persons offering voter education.

In the run-up to the 2007 elections the ECK conducted an extensive voter education programme. The ECK received KSh 54 million allocated from public funds and UNDP allocated US$ 4,424,367 to civic education from the donor basket fund it managed. The voter education programme was aimed at achieving increased participation in the electoral process, particularly in the case of women and other marginalised groups. The programme also aimed to inform voters’ choices, reduce electoral violence and increase voters’ knowledge as to when, where and how to vote.

In order to fulfil these objectives, a number of activities were carried out by the ECK in 2007, including training of trainers, training of facilitators, development of voter education materials and delivery of voter education countrywide. In its education campaign, the ECK targeted election officials and voters, using a sustained multimedia campaign, community-based voter education (CBVE) and a documentary film on the voting process acted by Kenyan leading actors and entertainers. Intensive multimedia campaigning was done during the voter registration exercise through TV stations, newspapers, billboards, posters, stickers, fliers and newsletters. The campaign was reinforced by the accelerated issuance of ID cards and contributed to the registration of

1.7 million additional voters.

The main themes used for the campaign were the following:

• Anti–violence campaign: the messages in this campaign were designed to inform Kenyans about the dangers and futility of electoral violence and were exhibited just before the election campaign. Messages with the following text were aired in TV commercials:

“Bad people came to our house, they started beating mummy and daddy; they slashed them, and burned our entire house. I don’t blame the people who killed my parents; I blame the politician who paid them.”

The good taste of the message might be debated. Furthermore, it puts politicians – as a class – in a bad light, and attributes violence directly to them, reinforcing old grievances between ethnic groups.

o The leadership campaign, which was designed to educate voters on the need to make informed choices and was exhibited during the period of nomination of candidates. The audio- visual showed a campaign rally in which voters rejected a candidate who tried to bribe them with money and announced that it was time for his tribe to rule.

o Such messages created a perception that ethnicity was one of the main bases for the choice of party/candidate. While it was proper to discourage bribery in the election, the message should have focused on issues rather than on tribal supremacy.
* The “Kimya” campaign, aimed at achieving the highest possible voter turnout, was rolled out two weeks before polling day. The advertisement said: don’t complain about bad leaders if you don’t vote.

Civil society and the media were fully involved in this activity. Some forty civil society organisations (CSOs) – non-governmental organisations (NGOs) and faith-based organisations (FBOs) – were selected to facilitate voter education across the country and were funded by the donor community. These CSOs targeted groups such as the general public, women, young people and religious leaders. For instance, the Institute for Education in Democracy (IED) launched an ambitious voter education campaign known as ‘‘Vijana Tugutuke’’ targeting the youth who had previously shown extreme apathy. The campaign utilised roadshows and music sessions in all provincial towns and attracted the youth who flocked to these sessions where the entry requirement was merely a voter’s card. A large percentage of the new voters registered in 2007 consisted of young people.

The voter education programmes were severely criticised during the public meetings IREC held throughout the country. Participants frequently asserted that civil and voter education as well as information campaigns were limited and inadequate since they did not focus on the special needs of some voters, such as illiterate voters in rural areas. Posters, for instance, could only be interpreted properly by those able to read. It was quite easy for an illiterate voter to misinterpret a poster which included in its design a coffin or weapons. IREC was also frequently told that voter education and information was undertaken by the ECK and other stakeholders in haste and that some educators were not impartial.

Findings: For the 2007 elections the ECK conducted an extensive voter education programme aimed at achieving increased participation in the electoral process, particularly in the case of women and other marginalised groups.

In order to fulfil this objective, a number of activities were carried out by the ECK in 2007, including training of trainers and facilitators, development of voter education materials and delivery of voter education countrywide. In its education campaign, the ECK targeted election officials and voters, using a sustained multimedia campaign, community-based voter education and a documentary film on the voting process. An intensive multimedia campaign was conducted during the voter registration exercise and fully involved civil society and the media. Some forty CSOs funded by the donor community facilitated voter education across the country and targeted groups such as the general public, women, young people and religious leaders.

The voter education programmes were severely criticised as limited and inadequate during the public meetings IREC held throughout the country.

5.7 Regulation of political campaigns

Election campaigns provide candidates and their political parties with the opportunity to hold political meetings, organise meet-the-people tours, produce and distribute posters and other publicity material, produce and air radio and television advertisements and otherwise to sell themselves and the ideas of their parties to the general public. In the course of this “selling” effort, voters have an opportunity to interact with the candidates and other party officials and to evaluate (even question) the leadership qualities of the candidates and the programmes (or promises) of the parties participating in the election.

Campaigns, properly conducted, can therefore be beneficial to both candidates (in terms of giving equal access to potential voters and the ability to garner support in the form of votes on election day) and voters (in terms of giving them sufficient information to make an informed choice). Political parties are key to the success or failure of any election. The perception of political parties and their candidates of the fairness of the electoral process can influence the perception of the overall genuineness of the election. As key participants in and beneficiaries of the success or failure of any election, they should be guided by ethical considerations in making statements and/or decisions regarding any election during the election campaign. In order for this to happen, there is a need for rules and practices that govern how campaigns should be conducted – and Kenya is no exception.

5.7.1 Overview of the campaign regulatory framework

The campaign period in Kenya is a rather fluid concept. While the current provisions of the law (supplemented by the ECK’s administrative action) are to the effect that it normally begins immediately after formal nominations and ends twelve hours before polling day, the fact is that political campaigning happens throughout the period between one election and the next. The ECK, in its technical paper on the subject, confirms this fact when it surmises that the 2007 campaigns were “unregulated” since they began in 2005 with the referendum. It only varies in terms of the issues canvassed, the style in which they are canvassed and the intensity of political activity – which normally heightens considerably once Parliament has been dissolved and writs issued for all the 210 seats (with the Minister for Local Authorities dissolving local authorities soon thereafter).

Once writs are issued to the ECK, section 13 of the National Assembly and Presidential Elections Act requires the ECK to (amongst others) publish a notice in the Kenya Gazette specifying the day(s) for political parties to nominate candidates, the day on which the formal nomination will be conducted and the election day. Other than the procedures for the returning officer at the close of the period for nomination and the bar against propaganda on polling day (in section 14 of the Election Offences Act), the definition of the “campaign period” was left to the ECK, until the requirement for fair balance in the allocation of broadcasting hours between differing viewpoints found its way into the Kenya Broadcasting Corporation Act in 1997, section 8(1A) of which provides:

“In subsection (1) (j), the expression ‘campaign period’ means the period between the initiation of an election under the provisions of the relevant law pertaining to the election and the eve of the polling day.”

The other aspects of the campaign have ampler provisions, though many of these are again fairly recent in Kenyan electoral history. The Electoral Code of Conduct, which is the Fourth Schedule of the National Assembly and Presidential Elections Act, was a direct response to the regulatory vacuum then existing in terms of managing political conduct at election time. The Electoral Code of Conduct (rule 4) requires all registered political parties and other persons bound by the code to endeavour to promote the object of the code to enable free political campaigning and open public debate to take place in all parts of Kenya during an election. Rule 5 requires all political parties and candidates to commit themselves to inter alia condemn, avoid and take steps to prevent violence and intimidation and generally affirm the rights of all participants in an election to express divergent political opinions and hold public meetings. Rule 6 requires participating political parties to recognise the ECK’s authority in the conduct of elections and to cooperate with the ECK at all stages of the process, including implementing ECK’s orders. The political parties’ authorised leaders are required by section 34A of the National Assembly and Presidential Elections Act to subscribe to the Code so as to signify acceptance to be bound by the provisions of the Code, as a condition precedent to participation in the election. Parties are also required to discipline errant party members.

Under the provisions of rule 8, the ECK is empowered to issue a formal warning, impose a fine, issue an order prohibiting the use by the errant party of public media time and restrict campaign freedom for the said party. Under rule 9, the ECK is at liberty to institute proceedings in the High Court and the political party in breach stands the risk of the High Court issuing an order cancelling the right of such a party to participate in the election concerned. A leader, office bearer, member or supporter of such an errant political party also stands the risk of disqualification from participating in the election as a candidate.

Rule 10 provides that there shall be no appeal from an order of the ECK imposing a penalty or sanction under rule 8, but an aggrieved party may file judicial review proceedings in the High Court. The court is entitled, in these circumstances, to take into account any civil or criminal proceedings that may have arisen as a result of the aggrieved party’s conduct.

Use of the state-sponsored media is provided for by the Kenya Broadcasting Act, which not only requires the public broadcaster to provide an independent and impartial broadcasting service, but also to keep a fair balance in all respects in the allocation of broadcasting hours, as between different political viewpoints and in consultation with the ECK, during the campaign period preceding any presidential, parliamentary or local government election and to allocate free airtime to registered political parties participating in the election to expound their policies.

Public meetings (of which electoral campaign meetings are part) are regulated under the Public Order Act (Cap. 56). Political parties are required to notify the police within three to fourteen working days before the date of a proposed meeting or public procession and provide the necessary particulars. A meeting may be stopped if it becomes disorderly, a security threat or a threat to peace. Candidates have the right to enjoy security, peace and order at such meetings or in such processions but they must finish by 6 p.m., failing which the police may stop the meeting or procession. The Chiefs’ Authority Act (Cap. 128) supplements these powers through the wide powers enjoyed by chiefs as local administrators.

The Penal Code (Cap.63) and the Election Offences Act (Cap.66) prohibit violence, as well as a range of conduct categorised in the latter as election offences (e.g. violation of the secrecy of the vote), corrupt practices (e.g. bribery) and illegal practices (e.g. engaging in propaganda on polling day). In the course of Kenya’s political development from a single party to a multiparty state, a number of laws have been passed barring public (or civil) servants from engaging in partisan political activity. Examples of this are section 17B of the National Assembly and Presidential Elections Act, section 15 of the Public Officer Ethics Act and rule 6 of the Electoral Code of Conduct (which also bars the use of state resources to campaign for particular candidates). All the foregoing provisions aim at levelling the electoral playing field, preventing administrative waste of public resources and ensuring that campaigns are generally orderly, peaceful and free of intimidation and other forms of undue influence.

5.7.2 Campaigns and campaign malpractice

According to the ECK and many other IREC interlocutors, the 2007 election campaigns involved media advertisements; public rallies, marches and demonstrations; mass meetings with designated speakers; church prayer meetings; burial meetings; breakfasts, dinners and lunches; unsolicited bulk emails (or spam); impromptu meet-the-people tours; door-to-door campaigns; posters, billboards and stickers; and other means. The array of methods used carried from party to party and candidate to candidate, based on financial means and other factors.

As was expected, given previous history, there were a number of breaches of electoral law relating to campaigns, particularly the Electoral Code of Conduct. Violence (including violence against women) was witnessed in certain areas, with or without the use of the patently undemocratic practice of “zoning” to keep competitors away from perceived strongholds. Spam messages were used to circulate defamatory propaganda, hate speech and viruses. Hate speech was also disseminated at rallies, through short text messages (SMS) and internet blogs. By most accounts given to IREC in its public meetings, the campaign period also witnessed bribery, vote- buying and -destruction, and other unfair, if not illegal, activities (see further discussion of this in section 4.3).

The practice of using state resources in partisan campaigns was again witnessed (as in previous elections, in the Moi and post-Moi era, including the 2005 referendum). This included use of government vehicles and aircraft in the campaigns (some disguised with civilian number plates) and use of high-ranking (and some low-ranking) public servants in the campaigns of the incumbent candidates (and, surprisingly, some opposing candidates). These have been widely reported on by various media, feature in a report of the state-funded Kenya National Commission on Human Rights (KNCHR) and have also been confirmed by the ECK (which had occasion to issue media statements on the practice) in its evidence before IREC. All this happened despite the assurances of the Minister for Finance to the country on 4 October 2007 that state funds would not be used in the campaigns. Another avenue through which state funds were misappropriated in partisan politics was in the use by some incumbent MPs of the Constituency Development Fund for political campaigns. Although IREC did not summon any of the named personalities in its formal hearings, there is sufficient documentary proof and eyewitness testimony to at least lead to the conclusion that, personal liability aside, the misuse of public resources has been a thorny problem in Kenyan elections, and was a feature of those in 2007 as well.

In 2007, in keeping with practice since the promulgation of the Electoral Code of Conduct, the ECK set up the Electoral Code of Conduct Implementation Committee to receive complaints relating to political campaigns. These were received from candidates, voters and returning officers. Investigations were carried out, witnesses summoned, and some candidates from Mathira, Malava, Ikolomani and Kilgoris constituencies called to answer to the various charges. The offences ranged from meting out violence to fellow candidates to zoning of areas to prevent other candidates’ access. The Committee imposed a fine of KSh 100,000 on each of the culprits. These refused to pay up and continued to participate in elective politics without any impediment at all. The ECK, through its chairman and some of its senior officers, testified at IREC’s formal hearings that the ECK was pursuing the matter in court as a civil claim (in the same way, say, that one would recover a debt), though this is yet to be determined.

5.7.3 Campaign financing

Running an election requires resources and, as the Kenyan elections show, the cost rises in keeping with expectations, advertising trends and other factors. Some of the literature on campaign financing attempts to make a clear distinction between financial resources (mostly money) collected and spent on the campaigns (campaign finance in the strict sense) vis-à-vis financial resources collected and spent in the ordinary course of a party’s day-to-day operations (also referred to by some as “routine” or “political” finance). It is necessary in this case, however, to adopt a more inclusive use of the term on the basis that funds could be mobilised even five years in advance for an electoral contest or spent well in advance of some period strictly regulated by laws. With this is mind, the number of ways that money is poured into politics (read elections) can determine not only the result of electoral contests but also their nature. Finances may, for instance, be made available not only for routine activities such as hiring public address systems, but also for bribing election officials and voters alike; or in exchange for favourable treatment in regard to a process that is supposed to be managed fairly (e.g. public procurement); or they may be coming from public coffers for partisan political activity of no benefit to the ordinary taxpayer.

Political parties relied heavily on private donors to bankroll their political campaigns as well as other party activities. Typical private sources include wealthy party members, business people, ordinary party members and the sale of party memorabilia (such as T-shirts, caps, key rings, etc). Parties mobilised this funding without disclosure that would have allowed policing of undue donor influences. The ordinary wananchi in Kenya had no information as to which entrepreneur had funded or sponsored any political party or candidate, to what extent and for what motives. Yet the evidence reviewed by IREC, including that of the ECK chairman and the Coalition for Accountable Political Finance (CAPF), points to a significant use of money in the 2007 elections to influence voters in various ways.

Political parties with lots of money collected from various sources were free to make use of it without disclosing the source. There were no disclosure rules, no ban on foreign donation, no campaign spending limits, no disclosure of individual donors, no contribution limits, no ban on corporate donations etc. As such, political finance cannot be said to have been free from “corrupt” political financing, for instance:

* the use, for campaign or party objectives, of money that a political office holder has received from a corrupt transaction

o unauthorised use of state resources by parties for political purposes which are a common feature of ruling parties’ campaigns in many democratic countries, i.e. the resources available to office holders, national and local, are blatantly used for

o electioneering, use of state-owned vehicles to ferry electors to governing party rallies and party supporters employed on the public payroll and expected to spend their time on political campaigning
* acceptance of money in return for an unauthorised favour or promise of a favour in the event of election to an office (quid pro quo donations)

* contributions from disreputable sources

* spending of money on illegal purposes such as vote-buying or unfair purposes such as treating voters (especially ordinary voters) by giving food, drinks and/or accommodation

That being the case, it is likely that political parties poured in money which led to severe spending inequalities in the electoral process. Seeing that bribery is a common phenomenon in Kenyan elections, the use of huge amounts of money then adds to the unfairness of the campaign finance equation because those candidates or parties with wealthy supporters are able to spend far more than their opponents. Add to this the fact that some state resources were applied in the election in favour of specific candidates and/or parties and an ugly picture of skewed campaign financing emerges even more clearly.

In the absence of legislation or rules to regulate collection and expenditure of campaign funds (except the inadequate provisions of the Public Collections Act, which was designed with ordinary harambee donations in mind), the ECK remained toothless in regard to the regulation of campaign finance, and politicians had the leeway to apply the law of the jungle in respect of finances. The effect was that the political environment was saturated with money without any form of expenditure control. Such unregulated political finance should not be allowed in a young democracy, where it can easily have adverse impacts on an election.

The Political Parties Act of 2008 was enacted before the 2007 general elections but came into force on 1 July 2008. The Act establishes the Political Parties Fund, with eligibility for the funds based on both proportional representation (80%) and an equal distribution formula (15%). The law regulates the sources of political financing, including the use of public resources and party funds for political campaigns and political activities. Political parties and candidates are also accountable to the ECK for the expenditure of such resources. The main challenge of the Act is that it provides only for objectives such as financial disclosure of income and expenditure without providing sufficient detail as to how to implement those objectives. Left this way, there is too little material to ensure satisfactory enforcement. Yet, even with the best rules, political finance is generally difficult to regulate.

Findings: Current regulations on many aspects of political campaigning are sufficient to run a credible election. What is mainly lacking is adequate enforcement powers by the ECK, hence the impunity with which its orders are treated. Campaign finance also remains an arena that will require some control, given concerns about unclean money being used in elections, possibly in illegal or unfair ways.

Misuse of public funds for political purposes is actually an unfair practice and (at least with respect to public human resources) an illegality according to three Kenyan laws at the time of the 2007 general elections. Yet all the claims on use of public resources were either ignored or flatly denied. This would then have proceeded in typical fashion if things had not got out of hand, and tragically so, at least in one respect. Administration police officers were accosted by members of the public (ostensibly with the accusation that they had been deployed as presidential election agents) and a number were lynched in these encounters. These murders were criminal acts, but it is difficult to deny the argument that they were some form of self-help in the face of what was perceived as an unfair political advantage by their principals. Impunity may get short-term results but it also breeds public anger that an electoral process can ill afford.

Perhaps in recognition of the intractability of the problem, section 15 of the Political Parties Act now bars public servants (except MPs and councillors) from being founder members or office bearers of political parties, engaging in activities that may compromise or be seen to compromise the neutrality of their offices or publicly indicating support for or opposition to any political party or candidate in an election. Four laws on a single issue should not only be indicative of the existence of the social mischief; it behoves law-enforcement agencies, including the ECK, to implement the law.

With regard to political finance (including campaign finance), the Political Parties Act provides a sufficient enabling framework for regulatory input in an area that threatens the quality of Kenyan elections. It is not lost on IREC that even provisions that would have provided some modicum of a check, such as section 8 of the Election Offences Act (against treating) and sections 18A-18L of the National Assembly and Presidential Elections Act (on capping campaign expenditure) were repealed, ostensibly because they were “difficult to enforce” or the limits “unrealistic”. In order to ensure that both political funds mobilisation and expenditure are closely monitored, more detailed provisions will have to be made in the regulations contemplated in section 43 of that Act, and enforced rigorously.

IREC has taken note of the likelihood that, for an election to have experienced problems on the scale witnessed in the 2007 elections, a large number of election offences were committed. Take the question of bribery, contrary to section 10 of the Election Offences Act, for example. It was shocking to hear one commentator remark during IREC’s public hearing in Machakos: “The elections here were smooth. Of course, there was the usual vote-buying, but that is normal.” When an activity that is barred by the law is referred to as “normal”, the law-enforcement machinery has broken down or is at least not functioning as it should. Other possible offences, of some of which we would have sufficient evidence if we had a full audit and others that circumstantial evidence seems to point to, are impersonation, contrary to section 7 of the Election Offences Act (when dead voters vote), participation in elections by public officers, multiple registration, transportation of voters, murder, rape, arson, assault, trespass (all contrary to various sections of the Penal Code) and so on.

Of all the requirements in the electoral process, the one observed more in the breach than with compliance is the Electoral Code of Conduct. It probably needs to be redesigned so that it only contains the values underpinning the participation of political parties in the campaigns. All actionable legal obligations should be incorporated into the relevant election law(s).

The nature of parties and their operations in Kenya led to a creation of political parties based mostly on alliances of convenience between wealthy ‘political entrepreneurs’ rather than political parties based on ideology or political platforms. As such the regulation of political finance should take into account the realities of the Kenyan political landscape and define adequate controls to ensure safeguards against unfair, corrupt and illegal financing.

5.8 Regulation of freedom of expression and equitable access to media

The principle behind freedom of expression in a democracy such as Kenya can be summed up in the following points:

* Everyone has the right to free expression freely in the medium of one’s choice.

* This implies the right to access, receive and disseminate information, ideas and messages of all types regardless of the border, through all communication systems and media – be they aural, visual, print or electronic.

* The media should enjoy editorial independence from undue influence from both state and corporate actors.

In Kenya, freedom of expression is provided for under section 79 of the Constitution in the following terms:

“79.1. Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information

97

without interference (whether the communication he to the public

generally or to any person or class of persons) and freedom from

interference with his correspondence.

“79.2. Nothing contained in or done under the authority of any law

shall be held to be inconsistent with or in contravention of this section to

the extent that the law in question makes provision--

(a)
that it is reasonably required in the interests of defense, public safety, public order, public morality or public health--

(b)
that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television; or

(c)
that imposes restrictions upon public or upon persons in the service of a local government authority, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”

It has not been easy to legislate on freedom of expression in Kenya. The Freedom of Information Bill has been pending for quite some time. The current Bill (2007) is yet to be approved by Parliament. While it is understood that the media is difficult to legislate upon, it is imperative that the media operates within a recognised legal framework to guarantee both its freedom and the citizens’ right to privacy.

5.8.1 Media as a tool for freedom of expression

Proponents of freedom of expression in democratic states describe the principles in three phrases: Freedom is when the people can speak. Democracy is when the government listens. The media is the messenger. For citizens to make well-informed decisions in an election there must be a free media, but the media must be more than free, it must be reliable and must be trusted. The media must be able to form independent and diverse views while at the same time avoiding comments that may generate violent conflict, as was witnessed before and after the 2007 general elections in Kenya. This can be achieved if the media is run in a professional manner and is not compromised by the state or other corporate interests.

Media as a messenger for freedom of expression is tasked with difficult choices. It has to decide whether the message it transfers to the consumers should be censored or given raw as received from the expresser. This becomes even more difficulty when the media is broadcasting live. In such circumstances a professional media, sensing the sensitivity of the materials or the subject’ may decide to have a delay of at most five minutes to give room for censorship. These are difficult choices, but they are bound to be made because while it is true that freedom of expression ought to be respected, the freedom should be exercised in a manner that does not interfere with other rights of individuals.

5.8.2 Misuse of freedom by the media

Media has been a source of both good and bad information. The 1994 genocide in Rwanda has partly been attributed to the incitement of an FM radio station that generated information demonising the minority Tutsi. Kigali's Radio-Télévision Libre des Mille Collines referred to the Tutsis as “cockroaches” that needed to be eliminated in order to purify Rwanda. Media was likewise blamed in the mass killings in Bosnia. These are some examples of how media freedom can be abused by media houses, leading to catastrophic results.

One of the solutions to curb misuse of the media has been regulation by way of legislation against abuse by the media. However, it is difficult to make media regulatory frameworks that are compatible with fundamental adherence to freedom of expression. In 2007, the Media Act was enacted. It includes in its second schedule a Code of Conduct. The Media Council of Kenya (MCK) is opposed to the Code and insists that it is the only body that should regulate the conduct of the media. In the pipeline is the proposed Prohibition of Hate Speech Bill, 2007 prepared jointly by the KNHRC and the Kenya Law Reform Commission.

Media regulation has become even more difficult with the increased use of the internet as a source of information. People freely interact through the internet and several blogs have been developed and attract a number of readers in Kenya. The internet combines the right to receive with the right to express and disseminate information at a faster pace. Unfortunately, the internet has not been exploited only for good. It is also not uncommon to find that very serious and inflammatory information is spread throughout the world via mobile phones.

5.8.3 Media and the conduct of the 2007 elections

The 2007 general elections were widely covered by both local and international print and electronic media. The media is reported to have engaged itself in a fierce battle, each trying to outwit the others in covering the elections from the campaign period to the transmission and announcement of the results. Some of the media houses, unfortunately, did not observe media ethics and standards. They did this understandably to win a larger audience for commercial purposes or for prestige. As a consequence, they ended up not helping Kenyans but added fuel to the flames.

5.8.4 Pre-election campaigns

Kenyans are undoubtedly good consumers of media materials. Media houses utilise momentous occasions to generate more money and gain more readers, listeners or viewers. Kenya is hailed as having the most dynamic advertising markets in East Africa and a population that consumes news and information voraciously. In 2007, call-in FM radio stations and live television interviews and talk shows attracted an enormous amount of interest from listeners and politicians in their droves during the campaign period. Politicians used the occasions to lure their voters and attack opponents. The challenge facing the ECK was the difficulty of controlling the materials aired by both the print and electronic media. They admitted before the elections that some of the materials aired by some media houses were highly unacceptable. But the ECK never censured any media house.

5.8.5 Hate speech

The Kenya National Human Rights Commission defines hate speech as “any form of speech that degrades others and promotes hatred and encourages violence against a group on the basis of religion, race, colour or ethnicity. It includes speech, publication or broadcast that represents as inherently inferior, or degrades, dehumanises and demeans a group on the basis of the criteria above.” The Constitution does not expressly prohibit hate speech in its section dealing with freedom of expression.

Hate speech is said to have characterised the 2007 general elections in party rallies: text messages, emails, posters and leaflets were other vehicles of incitement. When travelling around the country, IREC noted that this problem was widespread. There is a general view that most radio stations lack professional journalists able to control an audience or regulate talks. Their journalists lack training in conflict reporting or moderation. Talk shows and call-in programs require media personnel who are versed in moderation and who are able to predict a change of tone that may lead to negative results. Words and phrases such as “settlers”, “let’s claim our land”, “people of the milk to cut grass”, “mongoose has come and stolen our chicken”, “madoadoa” and “get rid of weeds” aired by Kass FM and songs such as “talking very badly about beasts from the west”, “Kiiji” and the song by Miuga Njoroge sung in Kikuyu dialect on Kameme and Inooro FM stations which implied that Odinga is a murderer, power hungry and does not care about other tribes but only his own tribe, and that Luos are lazy, they do not work, they do not pay rent and that they are hooligans, were received by Kenyans with mixed feelings. Luo stations also played a song “the leadership of the baboons” which vilified the Mount Kenya people.

The solution to hate speech by the FM radio stations should, in our view, be found elsewhere not by banning them. Most blame was directed at those media serving the big ethnic groups. These are Kameme FM and Inooro FM for the Kikuyu, Ramogi FM and Lake Victoria FM for the Luo, Kass FM and Chamgei FM for the Kalenjin, Muuga FM for the Embu and Meru, Mulembe FM, West FM and Chettambe FM for the Luhya community, Musyi FM and Mbaito FM for the Akamba and Egesa FM for the Gusii. Major concerns were directed at their popular talk shows such as “Baraza”(informal assembly) for Ramogi FM, “Just say it” for Lake Victoria FM, “Hagaria” (sharpen) for Inooro FM and “Arahuka” (Wake Up) for Kameme FM. Even from the titles of the programme allow one to sense that the message is bound to be divisive. These programmes are aired raw and are moderated by persons who have no training and skills in managing such shows, some having been recruited merely because they are entertaining or attractive. The solution is therefore to have trained personnel manage these shows and control the contents of the message broadcast for public consumption. Training in conflict reporting and moderation is likewise crucial.

5.8.6 Pre-election polls

The 2007 elections were replete with opinion polls from the moment the candidates of the main protagonist parties, PNU and ODM, were known. In fact the polls had started before. The polls sent different messages and actually helped shape the campaigns and people’s perceptions. The Sunday Nation newspaper commissioned weekly polls which sparked heated debates in the run-up to election-day. Polls were conducted inter alia by Infotrack Harris, Consumer Insight and Strategic Public Relations and Research. The polls predicted a close contest between Kibaki and Odinga and most showed the incumbent losing to his challenger. This was not well received by the government and sparked heated attacks on the media and the pollsters, who were labelled biased.

5.8.7 The ECK and the media in 2007

The relationship between the ECK and the media is a substantive topic on its own that deserves more time and space than are available here. IREC’s assisting counsel and his colleagues have conducted considerable research and have prepared a detailed and reasoned overview which will be made available as a supplement to this report. At this juncture and for present purposes it will suffice to make some basic observations:

* The absence of a sound working relationship between the ECK and the media in no small measure contributed to the explosive atmosphere that built up as the electoral process unfolded and then erupted in the violence that brought death and destruction to so many. The ECK has argued with great conviction that the root cause of the violence was the inflammatory conduct of the media. The media, in turn, hold the ECK liable for the disaster that befell the country.

* This is a sterile and futile debate – and the sooner it ends, the better. Neither side is completely blameless, but that is beside the point. The ECK and the media are bound together by mutual interests and reciprocal rights and duties.

* Many journalists still do not know or understand how the ECK functions; they still do not know the ECK’s procedures, their purpose or significance, and can therefore not report responsibly on these matters. The ECK is at least partly to blame for this dangerous state of affairs.

* A good working relationship with the media is an indispensable element of sound electoral administration and the ECK was seriously remiss in not realising this and vigorously addressing the challenge.

5.9 Technical assistance received by the ECK

External assistance for the 2007 electoral process had several components. First, several donors (USAID, the British Department for International Development [DfID], the European Commission, Canada, Denmark, Sweden and the Netherlands) set up the 2007 Kenya Election Assistance programme, which was implemented by UNDP. The programme aimed to strengthen the overall capacity of the ECK, civil society, media and other agencies critical to the achievement of free and fair elections, and to enhance citizens' participation in the electoral process and understanding of their rights and duties.

The International Foundation for Electoral Systems (IFES) had been providing support to the ECK since 2002, particularly in relation to the communication network and its organisational structure. IFES also submitted proposals on the use of technology, particularly to facilitate and control the nomination and counting/tallying processes, which are discussed in section 6 of this report. The National Democratic Institute (NDI) conducted training for the political parties, and the International Republican Institute (IRI) was responsible for several opinion polls and an exit poll.

The UNDP-managed program had several components, with a total budget of US$ 10.5 million. One of the largest components was the support provided to the Domestic Observation Process, through a grant of US$ 2.1 million to a group of organisations coalescing under a common umbrella: the Kenya Elections Domestic Observation Forum (KEDOF), which is discussed in detail in section 4 of the report. The UNDP project also assisted, through the Project Management Unit (PMU), the coordination, deployment and training of international diplomatic missions resident in Kenya.

The UNDP programme also supported capacity-building within the ECK (by providing laptop computers and printers for every constituency). Voter education was a key area of support, for instance via the MCK and the Anti-Violence Campaign. The ECK, with the aid of the programme, implemented a voter education programme aiming to supply Kenyans with information on key aspects of the electoral process, details of which are given in chapter 4 of this report.

The ECK also received support for the establishment of a Media Election Results Centre (MERC) at the Kenyatta International Conference Centre (KICC). The MERC should have commenced operations just prior to election day and continued operations until all results for the presidential and parliamentary elections had been received and declared. The primary focus of the MERC was to provide the media and other stakeholders with results and other information on the election. MERC facilities also included personal computers with internet access for use by the media and other stakeholders. The MERC was also to be utilised for press conferences, announcements and pre-election briefings.

Another focus of the programme was the development of a harmonised media strategy, coordinated by the Media Focus in Africa Foundation (MFAF). The campaign sought to promote objective, unbiased and impartial media coverage and support the objectives of free and fair elections and increased voter turnout. As part of the campaign, MFAF sponsored close to 400 voter education radio programmes on ten radio stations and thirty programmes on three national television stations. The media campaign was focused on key electoral thematic areas of governance and political accountability, ethnicity and nationhood, youth and women’s leadership, management of electoral process, human rights and rule of law. There was also an important component related to the monitoring of the media, conducted through Strategic Public Relations & Research Ltd (SPPR). The overall objective of the component was to ensure enhanced, fair and accurate media reporting on electoral issues, to be evidenced by improved electoral coverage in terms of balance, accuracy, impartiality and fairness. To achieve this key objective, SPRR provided independent, impartial observation of media behaviour throughout the election period. This involved an objective, neutral, accurate and comprehensive monitoring of both electronic and print media and an assessment of their compliance with the agreed codes of conduct and standards for access to media by political parties and candidates.

The last component relating to media involved the training of journalists, conceived as a response to the need to equip media with skills to play their agenda-setting and opinion-shaping role effectively, making journalists conversant with the various codes of conduct and ethics and the electoral process. The programme was implemented by the MCK, which organised training workshops across the country, targeting some 300 journalists. The training was directed at editors, reporters, sub-editors, political writers and correspondents of both genders working in the mainstream as well as the alternative press, drawn from both private and public media houses (print and electronic).

Other smaller components of the programme were:

* support for increased engagement of people with disabilities through a workshop that came up with a disability manifesto and through the establishment of a Disability Task Force made up of representative organisations

* town-hall based meetings designed particularly to further issues-based discussions, concentrating on constituencies where marginalised groups’ candidates did not have the same access to funding or to media as had more prominent candidates

* a grant provided to the Centre for Governance and Democracy relating to accountable political finance: this programme had its origin some years ago, funded by DfID, but the programme contributed some funding for a focus on political party campaign financing and related issues

A small grant was provided to the Kenya National Commission on Human Rights for projects such as one on hate speech.

Findings: External assistance for the 2007 electoral process had several components. First, several donors set up the 2007 Kenya Election Assistance programme, which was implemented by UNDP. This aimed at strengthening the overall capacity of the ECK, civil society, media and other agencies critical to the achievement of free and fair elections and improving citizens’ participation in the electoral process and understanding of their rights and duties. IFES had been providing support to the ECK since 2002, particularly in relation to the communication network and its organisational structure. IFES also submitted proposals on the use of technology, particularly in order to facilitate and control the nomination and counting/tallying processes, which are discussed in another section of this report. The NDI conducted training for the political parties and the IRI was responsible for several opinion polls and an exit poll.

5.10 Management of polling day operations

Voters’ perceptions are largely shaped by their experience at the polling station. A positive experience – and voters will tend to believe the elections were fair. A negative experience will translate into complaints and voters may extrapolate their own experience to the entire election. It is therefore important to provide a positive experience by conducting the voting process in a professional way. Election day, 27 December 2007, proceeded without much of a problem in most of the country. However, there were some persistent issues that must be dealt with here.

Bribery: Testimonies collected during the country visits suggest that bribery was rampant throughout the country. But perhaps the best testimony comes from the autobiography of a participant in one of the parliamentary races:

“We … appointed 2 or 3 locational coordinators and 4 ‘pillars’ (key supporters) per polling station – a total of 450 people. We gave each of these people 72 packets of ugali flour and Ksh 50 for mboga (vegetables). Theoretically, we were guaranteed 23,760 voters from all 99 polling stations. The exercise generally went well, although there were a few shortcomings from the dishonesty of some of the pillars. … My major rivals spent a lot more than I did on their campaigns. I was disadvantaged in my source of money.”

Assisted voters: The complement of bribery is the use of the regulation concerning assistance to illiterate voters. While voters with physical disabilities might need help to vote, this should not apply to illiterate voters. Many countries have a high illiteracy level and deal with it by using symbols for candidate choice and ballots of different colours for distinguishing between the various simultaneous elections. While it might be argued that an illiterate voter cannot distinguish between two written words, it is incorrect to assume that s/he cannot distinguish between a table and a chair (or between different fruits).

Use of the black book: The use of the black book should be discontinued, as it is a source of potential malpractice. The ECK might consider the introduction of tendered ballots in the case of persons whose name does not appear in the list of voters.

Security and access to polling stations by agents: It was reported during the country meetings as well as in the political parties’ submissions that agents of certain political parties were not allowed access to polling stations in other parties’ strongholds. It is necessary that the ECK and the security forces put an end to this practice, as it seriously affects the credibility of the election exercise. The presence of party agents is an essential safeguard and so-called “no go” zones should not exist.

Handling of ballots: At present, whether the three ballots are given to the voter at the same time or separately is an option left to the polling station staff. The main effect of the practice of giving the three ballots separately is that the discrepancies in voter turnout for the different elections tend to increase significantly. The voter’s options do not diminish if s/he is handed three ballots at once. If s/he does not want to vote in any one of the elections in question, s/he can just leave the ballot blank. This is standard international practice, and it is applied without problems in countries with lower levels of literacy than Kenya. Any problem that may exist should be easily solved through voter education. In this way, one of the major sources of suspicion – differences in voter turnout in the various elections – would disappear.

A number of other practical recommendations are provided under their respective section-heads at the end of this chapter.

Findings: Certain persistent problems were found: (a) bribery connected to the abuse of assisted voting to ensure the fulfilment of the agreement (b) misuse of the “black books”

(c) problems of access for agents of opposing parties in certain party strongholds (d) inadequate handling of ballots. These problems will have to be dealt with in future elections.

Recommendations

Concerning constituency delimitation

* IREC recommends that the basic principle for the delimitation of constituencies should be the equality of the vote, and the maximum departure from that principle should be clearly defined in the law (equality of voting strength should be aimed at in all cases, although in rare specially justified circumstances a 5 to 20% deviation range could be accepted). Criteria such as density of population, population trends, means of communication, geographical features and community of interest should be retained, but they should interfere minimally with the basic principle of equality of voting strength.

* IREC recommends that the process of delimitation be made accessible to the public through a consultation process and enough time provide for it to discuss and challenge ECK decisions. The process should be as transparent as possible.

* IREC recommends the establishment of an independent commission - the Boundary Review Commission (BRC) – with responsibility for establishing, reviewing and drawing new constituency boundaries. The persons appointed to this commission should be non-partisan (non-political) public officials with some having a background in election administration, geography and statistics and some being retired judges, clergy or other non-partisan citizens. The term of the body should end with establishment of the new constituency boundaries. The establishment of constituency boundaries should be separated from the administration and management of elections, the responsibility of the ECK. Separating the two functions will remove the politics involved in boundary delimitation from the ECK. Parliament should not have the power to override BRC decisions. Parliamentarians should be allowed to provide their views only before the commission makes its decision.

* IREC recommends that the first delimitation exercise take place as soon as possible. Afterwards, delimitation should follow the population census. The delimitation process should be completed at least eighteen months before a general election.

Concerning registration of voters

* Move to a new registration system: IREC recommends that as soon as possible the issuance of the national ID card be integrated with the registration of voters, so that when a person requests an ID card, s/he will automatically be entered in the voter register and informed of the location of the polling station where s/he should vote (a cheap voter card containing such information can be provided to the voter). The ECK should immediately begin the necessary studies to implement this solution (resorting, if so desired, to external technical support) and a significant part of the human and budgetary resources today devoted to the registration of voters should be transferred to the new system. The availability of additional resources should allow a much faster implementation of the IPRS, which should be the final goal.

* Simplify qualifications for entitlement: IREC recommends that entitlement to vote be based on residency, unless there are strong arguments for maintaining some of the other categories presently included.

* Requirement of voter’s card for voting: This is a redundant requirement. IREC recommends that voters be allowed to vote with the simple presentation of the national ID or passport if their name is in the voter register.

Concerning nomination of candidates

* IREC recommends that consideration be given to establishing a special election court to expeditiously receive and deal with disputes arising from party primaries. Such a court will deal with these matters, but only after the aspirants have exhausted the internal dispute resolution machinery in their respective parties and failed to obtain satisfactory relief. Guided by the constitution or rules of the parties in question, the special election court will then make a decision on the matter, and this decision should be final.

* IREC recommends that the ECK establish a clear, non-adjustable, timeframe within which all parties should hold their primaries and certify their nominees. Such a timeframe should be written into the regulations and communicated to all stakeholders in the electoral process together with the notice for elections. It should take into account the time required not only to conduct primaries but also to settle disputes arising from the primaries. It may be necessary to include, as a positive incentive for good behaviour, a requirement that candidates will not be gazetted while an election dispute is pending.

* IREC recommends amendments to the electoral law to require political parties to not only conduct elections in accordance with their constitutions or rules but to

also conform to established standards of fair practice. The Registrar of Political Parties should, in consultation with political parties, adopt a standard that is then enforced when the constitution and rules are submitted for the party’s registration (and with every amendment later) and which the electoral court can rely on to make a finding that a party’s nomination rules are not in keeping with fair practice.

Concerning electoral preparations

* IREC recommends that the job descriptions of all relevant temporary positions be reviewed and updated to take account of additional skills essential to the competent management of a modern, IT-facilitated electoral process.

* IREC recommends that the training of returning officers be enhanced to match the importance of their function in the electoral process, and also that consideration be given to earlier selection and recruitment to allow a longer period of training and engagement in ECK work.

* IREC recommends that personnel at every level be involved in the training of personnel one level below, to permit greater familiarity with the chain of work (for instance, national tallying centre staff should be involved in training returning officers in the tallying and transmission of results).

* IREC recommends outsourcing the selection of key temporary personnel to third-party agencies, with a requirement for testing some essential skills (e.g. IT) and a penalty clause in the event that any poor performance by selected personnel is discovered to have been caused by employees not having the stipulated qualifications. Longer lead time for the exercise is necessary so as to allow time to evaluate and if necessary replace recruits.

* IREC recommends that actual participation in electoral activities be made conditional on verified participation in all prescribed training events.

* IREC recommends the review of all training and operational manuals to ensure that they actually conform to the latest operational procedures in force.

Concerning voter information and education

* IREC recommends long-term investments in voter/civic education/information cam-paigns. Since district officers of the ECK have little to do when there are no elections, they could be used for civic education if provided with complimentary resources, such as mobility.

* IREC recommends that this activity not occur only during an election period or year, but on a consistent basis every year as in some other countries (Australia, Canada etc.). CSOs should be encouraged and must be able to conduct voter registration outreach in addition to voter education.

* IREC recommends that voter/civic education/information campaigns pay attention to local elections too. People must know enough about the choice or how their vote can make a difference in their local government or to their lives.

* IREC suggests that involving young people, particularly students, might help to interest younger voters, and would also strengthen bonds between older and younger elements of communities.

* IREC recommends that for communication to be effective the design of voter education material should factor in the varying needs and interests of target groups.

* IREC recommends introducing simplified teaching of the key principles and values relating to the right to vote in schools from the elementary stage.

* IREC recommends programmes such as “Vijana Tugutuke”, which was focused on youth – they need to cover a large area and this should not only be in urban areas.

* IREC stresses the importance of public forums such as round tables, candidate debates and town-hall meetings at which specific local issues can be raised for discussion (e.g. the problems of people with disabilities and the local community).

* IREC recommends that voter education teach the Electoral Code of Conduct and highlight the deleterious effect of fraudulent practices in elections.

* IREC recommends linking voting to community issues.

* IREC recommends that selected organisations be vetted well in advance in order to have candidates for conducting voter/civic education/information campaigns.

* IREC recommends that monitoring and evaluation be put in place to ensure that CSOs responsible for voter/civic education/information campaigns carry out the programmes properly and in accordance with ECK guidelines.

* Patience, tolerance and long-term commitment are needed to help Kenyan communities overcome the barrier that stands between them and full civic participation and leadership. This is why IREC recommends that particular attention be devoted to demonstrating how free and fair elections can change Kenyans’ opportunities and help to resolve difficult problems.

Concerning regulation of political campaigns

* IREC recommends that the ECK immediately promulgate regulations for the Political Parties Act, not only so as to provide a clearer legal framework for the registration of political parties but also so as to achieve the political finance objectives of the Act. Such regulations should have sufficient technical detail to illuminate the ECK’s powers of oversight, detection (or investigation) and enforcement (or prosecution and sentence) to ensure compliance with the Act. Should it appear, in the course of drafting regulations, that matters have been omitted that form a statutory bar to the sufficiency of the regulations, the ECK should expeditiously make use of its advisory powers to bring these to the attention of the Kenya Law Reform Commission or Parliament (through a relevant Committee) so that the Act can be amended.

* IREC recommends electoral law reform to give power to the ECK to enforce its orders. This should include barring errant candidates in the event of defiance of the ECK’s orders. The ECK should not have to go to the High Court for the sanctions contemplated in rule 9, but should be able to apply them itself, subject only to the High Court’s power of judicial review. Given that rule 12 states that the judicial review proceedings shall be dealt with in priority and the decision delivered before the date of the election concerned, this would provide additional teeth to the ECK and also safeguards against abuse.

* IREC recommends that the plethora of provisions against the involvement of public servants in politics be consolidated into one provision in the consolidated electoral law barring not only the participation of public servants in political activity, including elections, but also barring (in unambiguous terms) the use of any public financial and material resources.

* IREC also recommends that the ECK put in place, at every election, adequate monitoring mechanisms to collect information on public servants involved in partisan political activity for use in prosecution and other penalties sanctioned by law.

* IREC recommends a reintroduction of realistic (given the economic times) and functional (with adequate monitoring and enforcement machinery) expenditure caps on election expenditure generally or specific election expenditure items. This will beef up the other regulatory functions in the Political Parties Act and reduce the undue influence of money in Kenyan elections.

o IREC recommends that the Attorney-General appoint public prosecutors for the ECK for the purposes of prosecuting election offenders; in the alternative, that amendments be made in the course of the constitutional review process as to how

o the Attorney-General’s prosecutorial powers can be dispersed by Acts of Parliament to lead institutions, such as the ECK, to deal with matters under their remit (in like manner to the exemption of courts-martial under section 26 of the Constitution).
* IREC further recommends that electoral law be amended to provide the ECK with prosecutorial powers over all election offences, and not merely those in section 34A of the National Assembly and Presidential Elections Act, and that the ECK thereafter proceed to expand its legal department to include public prosecutors for this purpose.

Concerning regulation of freedom of expression and equitable access to media

* IREC recommends that the constitutional guarantee of the right be enhanced by a provision restricting hate speech.

* IREC recommends that media, especially State-owned media such as KBC, should strive to offer balanced coverage to all the players in an election as is required by KBC’s establishing statute and enhanced by the IPPG agreement.

* The ECK should ensure that the media receives correct and timely information so as to mitigate the possibility of misinformation such as was witnessed in the 2007 election period.

* IREC recommends that media houses ensure that they recruit professional reporters and editors and, in case of talk-shows and call-in programmes, avoid using staff who are ignorant of conflict reporting or moderation.

* IREC recommends that media houses ensure that they liaise with the ECK before publishing results so as to ensure the reliability and correctness of the information they pass on to their readership/audience.

* IREC recommends that the ECK or its successor, in consultation with suitably qualified advisors, as a matter of urgency devise and implement a sound media relations policy and strategy in order to establish and maintain a proper relationship with the media.

Concerning technical assistance received by the ECK

* The assistance provided by the international community to the electoral process includes highly successful elements as well as components that did not perform very well. IREC recommends that the assistance provided be thoroughly evaluated and the lessons learned applied in the future.

* IREC recommends that the assistance to be provided be carefully coordinated and defined well in advance of the electoral process. External evaluation of the proposed overall assistance programme before commitments is also recommended.

Concerning management of polling day operations

* Given the extent of bribery, IREC recommends that the ECK take steps to eliminate the practice, including stronger sanctions – such as disqualification - for candidates involved in the practice. The complementary practice of allowing assistance on the basis of illiteracy should be discontinued, and the voter education programmes adjusted accordingly.

* IREC recommends that the use of black books be discontinued (their destruction should be seriously considered) and that the ECK consider the use of tendered ballots in the case of persons who cannot find their names in the voters’ lists.

* IREC recommends that party agents’ access to polling stations and tallying centres be assured, and the only restrictions possibly placed on such access be related to the number of people the polling stations or tallying centres can reasonably accommodate. Agents should be adequately identified and, in the case of tallying centres, provided with special tags.

* IREC recommends that all three ballots be handed to the voter at the same time: this should be stressed both in training and in voter education.

* IREC recommends that every effort be made to ensure polling stations are accessible to all voters, especially people with disabilities and the elderly. A checklist for electoral officials surveying polling stations should be developed to help them assess whether the polling stations are accessible to all categories of voters – doorways too narrow, ramps too steep or door handles too difficult to manipulate. If possible, at each polling centre a committee including representatives of voters with disabilities should be formed to contribute to the design of polling stations.

* IREC points out that the polling station needs to be well designed to allow for easy entry and exit. Further, there must be a safety corridor where only ECK personnel, party agents and those voting are permitted. Clear open space must be left between the polling station door and the security rope. Only a few voters should be allowed inside the polling station at a time.

o Currently the training of party agents is optional. Yet they are vital to the smooth running of a successful election. Most agents do not know their formal role at the

o polling station since the parties are now left to train their agents according to their own curricula (which might well include how to rig on election day and how to prevent your opponents from voting). IREC recommends that party agents undergo ECK-supervised training. They should be given the same training as poll workers. Agents should not be allowed into the polling station unless they have undergone the training.
* After training, all poll workers and party agents need to be sworn. IREC recommends that training identify the penalties for perjury, fraud and rigging. No poll worker or party agent should be allowed to work at a polling station without being sworn.

* IREC recommends that one poll worker be trained as a “greeter” for each polling station. Their responsibility is to ensure that voters are directed to the correct polling place. The greeter may be stationed outside the polling centre to assist voters before they waste time standing in the wrong queue.

* On election day, the ECK should make plans to provide polling station staff with food and water (or provide them with an allowance to that effect). Party agents should not be allowed to provide food to polling station workers.