A New Dawn for Democracy as Supreme Court Nullifies Presidential Elections in Kenya

In Kasarani, along Mwiki road, there were two queues. One snaked from Kasarani Academy, past Seasons Supermarket and towards Equity Bank. The other, observably thick and convoluted, emerged from the New DC Compound and spilled onto the pavement outside the high, galvanised iron-sheet fencing. An atmosphere of concealed exuberance – or uncertainty – kept conversations restrained and humble: an occasional grin in response to a remark from a long-lost acquaintance here, a muffled laugh there. Nothing too loud. Nothing too proud. Everything was measured. In such situations, conversations about the weather, about the pestering drizzle that morning, came to the rescue, at least against the tribal animosity bubbling beneath the thin veneer of respectability.

I did not know which of the five queues emanating from the New DC Compound led to my polling station, but the Independent Electoral Boundaries Commission (IEBC) had made things easy and efficient. I SMS’ed my National ID number to 70000. A minute later I received a message with my voter registration details. County – Nairobi City, Constituency – Kasarani, Polling Centre Code – 011, Polling Centre – New Kasarani DC’s Compound, Polling Station – 05. I joined the fifth queue.

The promise of efficiency

Most elections in African countries are a massive waste of resources, but with such efficiency, many were convinced that Kenyans had got their money’s worth. According to the Pre-Election Economic and Fiscal Report, from the government, the budgetary allocation for the 2017 Kenyan presidential election was Ksh49,9 billion (USD499 million) – for direct expenses (USD333 million) and indirect expenses (USD166 million).

A woman votes in the previous elections in Kenya. Photo: Demosh/Flickr

These allocations translated toUSD25,40 for each of the 19,6 million registered voters, making Kenya’s election the second most expensive electoral exercise in the world, second only to Papua New Guinea’s USD63 per voter, and way above that of Kenya’s East African neighbours: Rwanda (USD1,05), Uganda (USD4) and Tanzania (USD5,16). This was going to be the most efficient, technologically advanced and secure exercise in the history of the country.

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It look a mere four hours to reach the polling station, compared to the more than seven hours I had queued in 2013. It could have taken shorter, but out of dignity and necessity, we allowed mothers, those pregnant or with infants, to skip the long queues. Many young men and women, or the old as yet unencumbered by the ailing of the body, wished they too had the privilege to skip the long queues.

Biometrics at work

At the polling station, the process was, again, straightforward. Produce an original ID card. To ensure that you were a registered voter, the electoral body had deployed the Kenya Integrated Election Management System (KIEMS). Every polling station had a KIEMS kit with a biometrics scanner. A matching fingerprint with the biometrics database meant that you were an eligible voter at that polling station. One could not proceed beyond this point if fingerprint identification failed. Identified voters were then given six ballot papers to vote for the President, Governor, Member of Parliament, Senator, Women Representative and Member of County Assembly positions. At the polling booth, a voter marked their preferences, and then walked to the ballot boxes. There was an IEBC officer, mostly men, to help voters cast their colour-coded ballots in the right box. To provide a second level of security against double voting (the KIEMS kit was the first), the voter’s fingers were marked with indelible ink. With those simple and clear steps, a voter had done their duty to democracy: electing a government of the people, by the people, for the people.

Presidential contender Mr. Uhuru Kenyatta – incumbent in this picture taken on August 4, 2017.
Photo/Billy Mutai

I walked back home to await the announcement of results. In Kenya, a typical silence and uncertainty characterises this wait. The voting process is always peaceful and smooth, but rarely so the vote counting and transmission of results. The IEBC had assured the public that the systems would work, but it did not take long before many realised that just like in 2013, when transmission systems deliberately and spectacularly failed, the 8 August 2017 election would bring forth an even more sinister manipulation.

In-between growing national tension, frantic press conferences by the opposition, insincere explanations by the IEBC, social media memes and tribal combat, a complicit silence from mainstream media, a heavy police presence and helicopters vulture-circling above opposition strongholds, the peacepreneurs sang louder. It was a replay of what Kenya went through in 2013. Preaching peace and singing “accept and move on” had become Kenya’s unique way of preventing election stealing from degenerating into violence. Peace over justice.

The voting and transmission

The plan was simple: Count the votes at each polling station in the presence of the public, party agents and observers. Enter the votes in Form 34A, which the party agents would sign to confirm that it represented the votes cast. Take the KIEMS kit and enter the votes counted valid, rejected, spoilt or stray. Let the agents and observers confirm correct entry. Scan Form 34A using the KIEMS kit and send the polling station vote counts, simultaneously, to the Constituency and National Tallying Centres. Physically submit Form 34A to the Constituency Tallying Centre. At the Constituency Tallying Centre, the Returning Officers would verify and tally the vote counts from Form 34A from constituent polling stations, enter the tally into Form 34B and declare the results, including presidential results, and physically submit both Form 34As and Form 34Bs to the National level. At the National Tallying Centre, the Presidential Returning Officer would verify the counts in 34A and 34B, and use the latter to enter counts into Form 34C. Based on the tally, in addition to other constitutional provisions, the Presidential Returning Officer would announce the winner of the presidential elections. The rationale behind the electronic transmission of results at the polling stations was to ensure that the contents of electronic scans of Form 34As matched the physical forms.

Read: Kenyans return to polls in 60 days as Supreme Court nullifies Kenyatta’s re-election

The IEBC set up a public portal, as required by the legal provisions on electronic transmission, but when the results started streaming in, many started asking questions. What was being displayed was at variance with what had been counted at many polling stations countrywide. Further, these results were not accompanied by scanned copies of the forms. Others started noticing statistical anomalies. For transmissions originating from random 40 000 polling stations around the country, the National Super Alliance (NASA) pointed out a constant 11% difference between Uhuru Kenyatta and Raila Odinga’s vote tallies. At some point, figures of other presidential candidates reduced – a scenario people joked about in social media as ‘unvoting’.

Presidential frontrunner Mr. Raila Odinga who is also the opposition leader in this picture taken on May 15, 2017. pollsters have ranked him slightly trailing of Mr Uhuru Kenyatta who is Kenya’s President.Photo/Billy Mutai

The NASA team released database logs showing that the transmission system had been hacked, that certain people had gained access to the system using the credentials of Chris Musando – the IEBC IT Manager who had been tortured and murdered just a few days before the election, in what many believe was related to attempts to manipulate the transmission of results. Despite calls from the opposition and a section of civil society for accountability and the verification of results streaming from the portal, the IEBC went ahead and announced unverified presidential results. As expected, the state cracked down on protestors, mainly from opposition strongholds, with reports showing scores of people being beaten and shot, including the killing of six-month-old baby Samantha Pendo, who had been clobbered by the police breaking into people’s homes in Kisumu, ostensibly to maintain law and order.

The Supreme Court

Against earlier indications that it would not go to court, the NASA coalition filed a Presidential Petition hours before the mandated deadline. NASA’s case was three-fold: that there were illegalities and irregularities in the transmission, verification and declaration of results that violated the constitution, the Elections Act, as well as IEBC’s own internal regulations; that these violations affected the presidential election result; and that the effect was to the extent that they should be declared null and void. The Supreme Court had only 14 days after the announcement of the presidential election results to reach a verdict.

Among other solid pieces of evidence and arguments, NASA lawyers presented an algorithm which they believed was used to manipulate results to favour Uhuru Kenyatta, by converting the incoming results into a desired output. The algorithm: y=1.2045x + 1.83546 (where y is Uhuru and x is Raila’s votes) allegedly helped maintain the alleged 11% difference in the IEBC portal, prepared the public psychologically for the incumbent’s win and yielded the 54% (Uhuru) vs 45%(Raila), taking into account the percentage won by other candidates and statistical error.

Supreme Court ruling annuls Kenya’s presidential election result. Cartoon: Damien Glez

While NASA’ allegations of hacking or the theatrics of algebra were not conclusively proven, the court’s IT experts, on accessing the IEBC server, confirmed NASA’s allega