Electoral Commission of Kenya's response to Judge Kriegler's Report

ELECTORAL COMMISSION OF KENYA
JUDGE KRIEGLER COMMISSION REPORT, 2008

The Electoral Commission of Kenya (ECK) considers that some excerpts from this Report contain critical messages which have not yet been brought to the attention of Kenyans. In an effort to promote voter education in this regard the full text of the excerpts as they appear in the Report are reproduced.

THE EXCERPTS

Page 10
"Constitutional and legal framework - Although Kenya has a legal framework for the conduct of elections, material defects in the framework combined with a culture of lawlessness at election time bring into question the capacity of the law to provide a sufficient framework for political competition."

"Wider responsibility - Though the ECK is primarily responsible for the flaws in the 2007 general elections, Kenyan society has long condoned, if not actively connived at, perversion of the electoral process."

"Long-term commitment - This culture of electoral lawlessness has developed over many years and cannot be reversed without a concerted, non-partisan commitment to electoral integrity on the part of political leaders, which commitment will need to be sustained and monitored over time."

Page 23

"What IREC sadly found out was that the ECK and the elections it delivered in December 2007 are no more and no less than the people of Kenya deserved. Whereas Kenyans and their leaders were content to go through the motions of a democratic election, they knew within their heart of hearts that they did not care to guard this democracy. They together with their leaders engaged in unacceptable practices:"

Page 24

"In order to start trying to prevent a recurrence of the tragic aftermath of the 2007 general elections, from President to peasant, will have to do an agonizing stocktake of where their country stands. They will have to show their commitment to the rule of law, and its equal applicability to all citizens irrespective of economic, social and political or any other belief. "

"No! The solution does not merely lie in constitutional and legislative changes. The culture of impunity in Kenya needs a fix too. The relevant law-enforcement institutions also need to do their jobs properly."

Page 29

"Beyond the Constitution and sections 3-3B of the National Assembly and Presidential Elections act, there is no law governing many of the ECK's institutional and operational aspects. This is in stark contrast to the situation in some countries in Africa (such as Malawi and Ghana) and elsewhere where this is provided for in a dedicated law to back up constitutional provisions on ..........."

Page 41

"Over the years a number of carefully reasoned and cogently substantiated submissions and recommendations by the ECK urging fundamental reform of virtually every aspect of Kenya's constitutional and legal framework for elections came to naught. A letter dated 3 May 2002 from Chairman Kivuitu to the Secretary of the Constitution of Kenya Review Commission, is prefaced with the observation that "it is difficult to separate (electoral law) from the rest of the Constitutional provisions and other laws that indirectly affect the electoral process." it made a number of recommendations which could sensibly be repeated verbatim today.

They relate, to name a few of those more salient in the present context, to the assumption of presidential office, gaps in the enforcement of the Electoral Code of Conduct, the empanelment of an electoral court, service of an election petition and, crucially, the size of the Commission, criteria for the selection of Commissioners and an inclusive and transparent appointment process. Many other proposals were made relating, for instance, to reinforcing the ECK's independence by having it report directly to Parliament, staggering the three elections, establishing a truly professional secretariat with "specialists skills and competencies" and providing for "effective enforcement of electoral rights". One can but speculate as to the course of events in December 2007 if these recommendations had been taken seriously. "

Page 42

"It is indeed ironic that the ECK, the composition and legitimacy of which has been so trenchantly criticized since the 2007 elections, itself made proposals for reform which could have prevented the fiasco. However, these proposals were not pursued, or they were frustrated by a political agenda that did not give them the attention they deserved. As things stand now, there is nothing in law to prevent the relevant policy - and law-makers from taking the ECK's advice, discussing all or aspects of it with the ECK, and then incorporating the final result of those deliberations into electoral law reform proposals. However, owing to the lukewarm response the ECK's proposals have received, IREC is constrained to make recommendations on an issue that probably does not require more than a change of attitude.

There are other matters, however, on which the ECK requested legal reform that IREC does not believe require such reform - for instance, the use of modern technology for transmitting results."

Page 55

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

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

"During the electoral period, parties consistently lack respect for laws or regulations and the Electoral Code of Conduct is blatantly violated. The ECK has confirmed to IREC that the few politicians who were fined for breaches under the code in the run-up to the 2007 general elections have refused to pay the fines. ECK has had to file proceedings in the High Court in order to enforce its orders but to date these cases remain undetermined. Parties condone, without censure, their candidates' violation of electoral regulations."

Page 59

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

Page 63

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

Page 64

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

Page 66

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

Page 68

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

Page 69

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

Page 70

"Some observer reports published locally and internationally had the potential of exacerbating an already intensely volatile post-election period. The most potent and influential of these is a document authored by some four domestic election observers, titled Kenyans for Peace with Truth and Justice (KPTJ): Kenyan Elections Observers ' Log: December 29 - 30, 2007. Under the sub-title "Countdown to Deception: 30 hours that destroyed Kenya", the authors made a number of bold and emotive statements, some of which unfortunately lack a credible basis."

Pane 72

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

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

Page 81

"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."

Page 95

"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."

Page 99/100

"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."

Page 100

"Hate speech is said to have characterized the 2007 general elections in party rallies: text messages, e-mails, 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."

Page 102

The ECK and the Media in 2007

• "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 realizing this and vigorously addressing the challenge."

In the interest of the country and its bright future, Electoral Commission of Kenya (ECK) urges all Kenyans to give due attention to these messages and effect them. ECK undertakes to do likewise whether that has been highlighted in the Report or not. As a nation we must move and look forward with determination to genuinely shape our destiny in unity and love. This we can only do if we shed off our prejudices.

Electoral Commission of Kenya