Wrong Observation: What Historic Kenya Court Ruling Means for International Election Observers and Democracy in Africa

 “The International community seems too concerned with stability and short term peace, at the expense of credible elections and democracy”- Kenya’s Opposition Leader, Raila Odinga

In nullifying the Presidential elections in Kenya, the first such move in Africa, Kenya’s Supreme Court has dealt a blow to the proponents who push a narrow electoral democracy in Africa. But it is the response by Citizens that marks a new chapter in Kenya’s relations with the International community

A few hours before the announcement of results of Kenya’s 2017 elections, an internal memo was leaked detailing how the International Observer Mission, led by the United States, the European Union (U) and the Carter Centre, had outlined a choreographed “pressure” aimed at forcing the opposition to concede defeat. According to the memo, the Opposition leaders declined the pressure, even after being threatened with “ICC”, a veiled threat to take the opposition leaders to the International Criminal Court. According to the memo, the US ambassador was then dispatched to organize a series of endorsements by the entire Observer Community including local Civil Society and the Africa Union. And so within a span of 2 Hours on 10th August 2017, the European Union Observers, Carter Centre under the leadership of John Kerry, and the EU funded Africa Union and the Civil Society-led Elections Observer Groups (ELOG), went on Television and Radio to express their full support to the entire election process, stating that they found it Credible, fair and peaceful. ELOG even released their own parallel results, which was to be later used by the Government in its argument that the elections were fair and credible

When the Observers, including ELOG, were asked why they did not wait for the official results to be announced before giving their verdict, they claimed that this was not their job."We are here to observe, not announce results or make judgements!" ELOG insisted that even though their results (which showed that the President had won by 54%) were based on a representative sample of 1,692 polling stations (there were a total of 40,883 polling stations) their sampling was scientific enough to accurately project the results, and there was no need to wait for the official announcements.

John Kerry even made a joke about it:

“I hear there were dead voters. We moved around but never saw any dead people voting!”

Well, on 1st September 2017 Kenya’s Supreme Court not only nullified the results of the elections, but they declared that the entire process leading to the election itself, and which the Group of Observers, specifically the European Union (EU) had known about for over a month, was flawed to the core.

A large section of Kenyans went on the streets to celebrate, not at the outcome of the case, but the fact that Kenya has a Judiciary that refused to bow down to the Executive, a political party that had exerted its power throughout the election process, and an International community that had tried to impose a President on them.

Kenya’s President was quick to respect the decision of the Court, a welcome move that demonstrated Kenya’s maturity.

The dust is yet to settle on this turn of events and what it means for democracy in Africa. For Commonwealth Countries, this ruling sets precedence that will shape how future cases will be handled.

But for the International Observers and sections of Civil Society Organizations (under ELOG) that supported them, it calls for sober reflection on how far they can go before they lose their objectivity in the eyes of society. It also calls to question the objectivity of the Donor Community in political processes where they have an active interest and stand to gain, perhaps more than the citizens of the country.

(In its ruling, the Supreme Court arrived at three conclusions:

1.      The entire process of elections, not just the actual election itself, was carried out in a manner inconsistent and in breach of the fundamental chapters of Kenya’s Constitution. In doing this they questioned the entire rationale given by the International Observers, who only chose to focus on the final 24 hours during and after the elections.

2.      There were serious criminal acts in days leading to and after the elections, key among them being deliberate hacking of the election transmission and monitoring servers and machinery, and the manipulation of the tallying process. Again this was in complete contradiction to the Report of the Observers who had insisted that no criminal or acts of negligence had been observed or reported, despite the fact that some Observers such as the U had been in the country throughout the entire time that these were acts were reported by the media.

3.      That the entire election, including the parts that Observers said were peaceful and credible, were in fact on the contrary manipulated to ensure a specific outcome.)

(Note: The Full ruling will be made available within 21 days from 1st September, but a detailed reporting of the flaws can be found here)

There are four lessons to this decision and the response of citizens:

1.       It’s time to walk the talk- Democracy is a Process in all countries, not just Europe and America

 The first ruling of the Supreme Court was an indictment on the EU and US’s idea of how democracy should work in Africa. This is what the Supreme Court has used as a basis for its ruling. The Court castigated the electoral body for focusing on the numbers at the end of the line rather than how the line was formed in the first place. This is the position that had been taken by the EU and US Observer missions when they asked the opposition to accept “the majority will of the people”

 For a long time, the West has been pushing a democracy in Africa that begins and ends with elections. Millions of money is pumped into having a credible election- but they define credibility through the narrow lens of what happens on the polling day, not before or after. It is a definition of democracy that is not just insulting to societies, but to the whole tenet of democracy itself. In the US, electoral colleges, not number of votes at the end of the day, is the defining yardstick of democracy. In nearly the whole of Europe and most of Asia, there are rules that ensure that a society is not ruled by sections of society whose only qualification is their numerical strength. Yet this is what Europe continues to push in Africa. They even attempted to force Somalia to abandon its over 200 year history of electing leaders through the clan system, and tried to force them to take the simple electoral democracy route that ignores the country’s roots that has informed its social contract .

In nullifying the elections, the Supreme Court stated that the process must justify the means. When the observers were asked the same question, there response was “our job was to observe the elections, not give a verdict on the process”

That is a clear statement of a lack of understanding of democracy, or a deliberate attempt to twist its definition.

2.      External Interests triumph, but it can never undermine citizens determination for a Social contract of their own making

In their report, the Carter Centre admitted that many things went wrong with the elections. But they downplayed these anomalies and called them minor, focusing instead on what they called “peaceful elections”. Many Kenyans were left baffled at how the EU and US could declare this elections credible and peaceful when they admitted the process was flawed. It was not lost on Kenyans that over the past three years the EU and the US have made concerted efforts to exert its economic influence over the country. Kenya was the leader that pushed, on behalf of the European Union, for the adoption of the Economic Partnership Agreement (EPA), a skewed agreement that will effectively kill small businesses in Africa. The US is accused of being behind the multi-billion health privatization plan that has brought public healthcare to its knees. General Electric, fronted by the Kenyan Executive Arm, forced its multi-million dollar equipment on small Kenyan hospitals that were not only ill-equipped to maintain and sustain them, but did not need them. Shortly after signing the contract, President Obama made a visit to Kenya, praising the President for his progressive support to the private sector. And when the G20 invited President Kenyatta to its Summit, Kenyans were left wondering what the G20’s interest was in inviting such a small economy to sit at the high table.

Those interests appear to have gone full circle when they pushed the opposition to agree on results that had not even been announced; and the public noticed.

The international Community (read EU and US) may have succeeded in piling pressure to the AU and a section of civil society to tow the line. But the society has become a little wiser. They can read through these interests.

3.      Citizens can be pampered by AID, but not for long

This is perhaps the most powerful lesson that the EU and the US will need to learn, and learn quickly. The EU observer mission had been in Kenya for one month by the time the country went to the polls. They had seen all the mistakes and errors. But they decided to be silent about this in their reports to the public.

In doing this, they sent a message (knowingly or otherwise) that they were not forthright and objective. The choreographed set of statements supporting the outcomes even before the results were announced gave Kenyans the impression that these Donors were desperate to see the current President remain in office.

But that is not all.

AS always happens with every electoral cycle in Africa, Donors wait until about six months to elections, then pump a millions of dollars into only two things-a form of voter education that achieves nothing more than getting people excited about going to the ballot, and the equipment and marketing costs of the electoral body. They bank on their humanitarian and Development Aid to win the support of the public and make them believe that voter education is all about lining up to endorse one among them, and the elections will be fair if they fund the body that conducts it. This is based on a long held belief that because they give humanitarian or donor support, they should be trusted to be honest arbiters. Kenyans appear to have grown beyond this dichotomous thinking. They accept AID, but increasingly, as the case demonstrated, they no longer believe that Donors are honest arbiters

4. Civil Society must find, and maintain a balance between Donor support and citizen protection

Two leading Civil Society Organizations were threatened with closure by the government because of their perceived support to the opposition. It later turned out that these two-Kenya Human Rights Commission and Africog, had offered to provide details of malpractices that they had documented, something that angered the government. But another larger group of Civil Society, under the Elections Observer Group, had joined the International Observers in supporting the outcome and process of the elections. The nullification of the results by the Supreme Court has left Kenyan's wondering if indeed the Civil Society was objective in their reporting, and why like the International Observers, they chose to announce their results before the officials results were announced, something the government had banned everyone from doing. The civil society may have been right in taking an independent stand and defying the government. But in choosing to follow a timeline drawn by donors, they gave the impression that they had followed a script written by the Donors. It did not help that their results were also based on the voting outcome only, and appeared to be similar to the ones Kenyans were seeing on their screens, and which have been since nullified. It is a lesson for Civil Society to be slow, not too quick to listen to donors, and perhaps not bow down to pressure to focus on short term outcomes at the expense of processes.

With elections only 60 days away, will the International Observers and local Civil Society be seen as objective? Will the rest of Africa see Donors and Observers as honest arbiters anymore?