Kenya: Ways Forward

Following on yesterday's press conference, The EU Observer Mission’s 15 page preliminary report emphasizes that the most serious irregularities occurred in the tallying of the votes. Excerpts:

In a large number, almost a third, of polling stations visited, party agents were not given a copy of the result sheets, either because the form was not available or they did not request a copy. Furthermore, in more than a third of polling stations visited, the results were not posted at the polling station level fundamentally undermining transparency measures in the process. The aggregation of results in the tally centres was delayed and also lacked transparency in many constituencies. EU observers noted variations in the procedures used in some of these centres, depending largely on time and logistical constraints. The combination of the lack of transparency and variations in procedures meant that the observation role played by local party agents and observers was restricted in this part of the election process.

In Central Province, the majority of EU EOM observer teams experienced difficulties in obtaining the results for each polling station from Returning Officers during the tally process. In several constituencies including Mathioya, Kaloleni, Mvita, Kisauni, Changamwe, Likoni and Central/North Imenti, the Returning Officers refused to provide constituency results to EU EOM observers before these results were confirmed in Nairobi. The constituency results form in Kangema showed to EU EOM observers was only signed by a party agent of PNU. A number of party agents reported that they were refused copies of result forms. Furthermore, according to the ECK Chairman, some Returning Officers were reported to have disappeared after completion of the tallying process in their constituencies.

The solution that the EU Observer Mission is suggesting is an independent audit of the results- Again, as described in the preliminary report:

To enable doubts over the accuracy of the presidential results to be clarified, it is vital that an independent investigation is swiftly conducted and the ECK demonstrates maximum transparency in this period. As an essential step, the results of all polling stations must be swiftly published in newspapers and on the internet to enable an independent audit to be undertaken.

The problem with this solution is that part of the whole dispute that caused the final meltdown during the results meeting at the Kenyatta International Conference Center is that there is in fact disagreement over exactly which results sheets should really count towards the final national total. ODM leaders (and numerous ECK officials and observers) have pointed out that in numerous constituencies, result sheets used by the ECK differed substantially from those endorsed by returning officers.

Put differently, there are two possible points in the tallying process where results could have been inflated. The first kind of potentially dishonest tallying is with the actual constituency level results, where votes were being added to particular candidates tallies. With this kind of rigging (which could have either happened while counting at constituencies, or at the ECK headquarters), it should be the case that presidential voter turnout numbers should appear to be substantially higher than parliamentary turnout numbers, and there may be even multiple copies of vote record sheets. The second point at which tallying could have been done incorrectly is when the Electoral Commission of Kenya tallied all of the constituency level votes to get national level vote totals for each candidate. If this kind of malfeasance took place, then it would simply be the case that the total number of votes reported for each candidate nationally does not equal the sum of votes for each candidate received in each constituency.

According to Kenyanpundit (who quotes a journalist’s question from the EU EOM news conference), the audit being suggested by the EU mission would only really address the second kind tallying error:

I asked at the EU EOM press briefing this morning if a complete recount were at all possible, and they said no - a lot of the ballot boxes have been tampered with. The only thing that would be possible is a retally - i.e. take the documented constituency tally and count up again for the national figure. However, obviously this is not going to deal with issues like significant differences between presidential and parliamentary votes in individual constituencies, EU observers being turned away from different polling stations, and extremely high voter turnout.

Similarly, the above statement by the EU, which emphasizes publishing “the results of all polling stations” seemingly ignores the fact that the most contentious part of the election is in fact separating the “real” polling station results from those that were falsified either at the constituency or national level.

Given the shortcomings of solutions suggested by election monitoring missions, as well as the limited viability of turning to the courts, both Kenyanpundit and kenyanjurist are emphasizing that any solution must be political as well as legal. But what would such a political solution look like?

The Nation reports that the three major political candidates, Raila, Kibaki, and Kalonzo (of ODM-Kenya) are close to issuing a joint statement calling for calm in the country. However, it is a big leap from jointly calling for peace to actually forging a government of national unity. Although commentators from the Nation Columnists to Gordon Brown are suggesting such power-sharing arrangements as the way forward, Chris Blattman accurately points out that such suggestions are naïve at best. That said, I personally have no better suggestion for breaking the national-level deadlock- Raila seems unwilling to acknowledge the legitimacy of Kibaki’s claimed electoral victory or to cancel his mass protest scheduled for Thursday and Kibaki seems unwilling to name Raila president or take strong responsibility for the violence that has been going on since this past weekend.

Given that a national-level political solution may take months of negotiations between Raila, Kibaki, and various international actors, it is apparent to me that the immediate solutions to ongoing violence and insecurity are going to need to be local. The Nation’s coverage of the surprising lack of violence in Mlango Kubwa, a Nairobi neighborhood that has experienced a substantial number of clashes in the past, presents one kind of stable local order that might be able to emerge.

Since riots broke out in the city on Sunday, no major incidents have been reported in Mlango Kubwa.

“There are some hooligans who came from Mathare 4A area and started setting some kiosks on fire,” a trader said. He said the residents repulsed the gangsters. After that incident, elders resolved that the residents should not engage in the chaos.

“Here it is peaceful. Fighting is going on a few kilometres away from here, but we are keeping guard to make sure no one comes to incite people to fight one another,” said Mzee Juma Hussein. There were several groups on Juja Road who were keeping vigil to ensure no one entered the slum to cause unrest, as happened on Sunday when some shops were burnt.Mzee Hussein said residents of Mlango Kubwa want nothing to do with the chaos.

A survey by the Nation on Tuesday established that it was business as usual in Mlango Kubwa. Kiosk owners sold foodstuff and other wares.

Although we know that local conflicts can shape violence through a process of alliance with national level ethnic divisions, the challenge in Kenya will be to do the reverse-to rebuild national level political order from systems of community governance that have survived (and perhaps been transformed by) the polarizing national elections.