Justice & Political Flexibility

Aside from the communal baying for the IEBCs blood over the past week for having the audacity to make Kenyans wait for the conclusion of the elections, another interesting piece of news has slipped by mostly unnoticed.

English: International Criminal Court (ICC) logo
English: International Criminal Court (ICC) logo (Photo credit: Wikipedia)

The hearing of the cases against Uhuru Kenyatta and Francis Muthaura have been postponed to July on the requests of the two suspects.

This has been happening parallel to the ominous statements issued by the United Kingdom and the United States about the consequences of making bad decisions a.k.a voting in the UhuRuto duo.

With the dreaded candidates poised to win, the movements from the two powers will be interesting in the immediate future what with the views that China doesn’t really mind who runs a country so long as they are ready to do business. The paltry bargaining power that the west and Europe are increasingly finding themselves wielding must be disconcerting and may explain why armed responses seem to be the only card they have left.

The relaxation of the terms and conditions of the cases against the suspects emphasizes the fact that legal and economic decisions are not independent from the political situation in the particular time frame. Obamas decisions must be timed and weighted by the mood on the ground in kenya lest the rejection winds up causing more harm than good by way of govt cooperation and having a regional ally.

It is instructive that the US is not a signatory to the rome statute on which the ICC is based so the moral authority to actually make other nations adhere to it is not exactly intact. But what do we expect from the largest exporter of weaponry and by extension war.

My basic premise is that court processes that are meant to be impartial and use the law as their holy text are undetachable from the prevailing political climate.  The ICC being an international independent body should be the least to be concerned by the nuances of a national election in which the suspects are top contenders but we see a very measured approach to how the cases are handled and the media briefings issued by the prosecutor.

This is also illustrated by the happenings in the southern states of the US at the prime of and decline of slavery in the United States of America. It seems preposterous that what is considered the land of the free or the brave just a couple of years ago felt that counting niggers like cattle and considering them to be assets was perfectly legal. This was considered lawful within the context of the political climate and I dare say it was legal as a consequence of the political climate as opposed to existing next to it in a symbiotic relationship.




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Spoilt Votes Issue

There is a brewing issue that may force the ongoing Kenyan elections go into the runoff stage.

As of last night, based on the provisional results that were on all TV screens, the no. of rejected votes were upward of 300,000.  This is a disturbingly huge amount and if it was attributed to a candidate, he/she would be the 3rd highest in the presidential running. The debate is on what to do with this category of votes. Both of the front runners are nervous that it will erode their percentages in the total pool and thus ruin their shots at winning in the first round. Not including them in the final tally for cast votes would make the chances that a first round win is possible.

Here is a post I found by a good friend on Facebook breaking down what the legal situation is like.


The constitution provides that that a candidate shall be declared elected as president if the candidate receives more than half of all the votes cast in the election and at least twenty five per cent of the votes cast in each of more than half of the counties. Either Uhuru or Raila requires 50 + 1 and at least 25% of all votes cast in 24 counties. Whereas there is no contention as to whether both have met the county votes requirements, there is an emerging debate as to whether the requirement on the 50+1 of the votes cast includes the spoilt votes and/or the rejected votes. 

A ballot box is defined as a transparent container with a slot on the top sufficient to accept a ballot paper in an election or in a referendum but which prevents access to the votes cast until the closing of the voting period. The law further stipulates that the ballot boxes should be fairly transparent or translucent and be colour coded prominently and distinctively to identify the respective elective post and shall correspond with the colour of the ballot paper for that elective post. 

IEBC is required to ensure that that the voting method/ system is simple, accurate, verifiable, secure, accountable and transparent. IEBC is also required under the constitution to ensure that the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station and that the results from the polling stations are openly and accurately collated(emphasis mine) and promptly announced by the returning officer and to ensure that appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safe keeping of election materials. The word collate means to compare critically, sort, analyse. I do not think that IEBC has exhausted its mandate on collation of cast votes in relation to the rejected votes.

Votes cast

The phrase votes cast has not been defined in the Kenyan law. However, to cast one’s vote means to place one’s ballot paper in the ballot box. A ballot paper means a paper used to record the choice made by a vote and shall include an electronic version of a ballot paper or its equivalent for purposes of electronic voting.

Is a rejected vote a cast vote?

We did not vote electronically, so the votes or choices were expressed in the ballot papers and voting was completed the moment the papers were placed in the ballot boxes. If the rejected votes were cast in ballot boxes, then they form part of the votes cast. Noting that to cast a vote means to place a ballot paper in a ballot box by a voter as an expression of choice, my view is that rejected votes are votes cast and should be factored in the 50+1 requirement.

Rejected votes and valid votes

Under the elections regulations, at the counting of votes at an elections, a ballot paper or a vote can only be rejected for the following reasons:-
a) For the reason that it does not bear the security features determined by IEBC e.g serial number or stamp, or size, or marks etc;
b) Where a person has voted for more than one person in the same ballot paper;
c) Where something is written or so marked in the ballot paper which makes it uncertain for whom the vote has been cast;
d) A vote which bears a serial number different from the serial number of the respective polling station and which cannot be verified from the counterfoil of ballot papers used at that polling station; or
e) A ballot paper which is unmarked.

There is no requirement that these ballots should be put in the right ballot box for them to count. Further, IEBC is given the power to interpret the intention of voters. A ballot paper which is not marked in the right place but clearly expresses the intention of the voter should not be rejected. For example which someone puts a mark which runs out of the box in the paper but does not run to another person’s name is valid. Even if a person puts a tick and X and even writes a name that does not necessarily identify the voter against one person only, that vote is valid. Accordingly, out of the cast votes, a valid vote is one which bears a clear intention of expression of choice in favour of only one candidate.

Unsolicited advice to IEBC

In my view, the votes placed in the wrong ballot papers should not be rejected. They were validly cast votes. My advice is that IEBC should sort all the rejected votes under all categories to ensure that the valid votes placed in any ballot paper is sorted, placed in the right category and counted. If 350,000ballots were erroneously placed in the presidential ballot box, if this is multiplied by the 6 categories for argument’s sake, we end up with an alarming 2,100,000 ballots or choices which were cast in the wrong ballot box. I think IEBC should take the responsibility of sorting out all the rejected votes and include them in the final tallies. This could change the fortunes of many candidates. IEBC should exhaust its mandate in law and sort out the good votes in the wrong ballots and add them to the provisional results. 

Josephine Kogweno
Nairobi based Lawyer

Ahmednasir Abdullahi of the Nairobi Law Monthly fame is breathing fire and brimstone  as a result of this debacle. I fail to understand though why he is quoting American laws, we ain’t American and any precedent set would not necessarily apply here right?

I am watching this closely and the outcome or precedent set here should be history making.


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How to bungle an election

Well this has gone to shit fast.

The Coat of arms of Kenya
The Coat of arms of Kenya (Photo credit: Wikipedia)

Here we were with an expensive electronic system that was supposed to guard against rigging, gerrymandering and all sorts of irregularities that are the staple of Kenyan elections. All that is until the whole damn thing collapsed with so many issues that it was fully abandoned and now we are back to the 19th century with manual counting. Atleast we have calculators. That should help.

Some say, the issue was the server running out of harddisk space, others that Safaricom collapsed under the traffic (which was pitifully little, only hashed text was being sent from the Returning officers.) Others speculate that the server (vulnerable like anything else connected to the internet) was hacked to bits and a permanent 400,000 lead in favour of Uhuru Kenyatta was coded in.

The conspiracy theory in me tells me this is more a human problem than a technical one. Someone/some people are trying to rig themselves in and the ripple effects of these actions are the visible events at Bomas of Kenya. I say this at the risk of being branded a warmonger or unpatriotic kenyan ad nauseam but I stand by it. There is nothing normal about the Chairman of the IEBC insisting on the fact that the law gives him a week to announce the presidential results. That signals a big problem that has required a recount or in depth audit of the results filed by the Returning officers. The slow rate at which the results are bing announced is also disheartening. & constituencies since morning. What possible issue could justify such a rate?

A useful site has been put up by Eric Hersman  to investigate the internals of the system and the flow of the electoral information from the polling centers to the National     Tallying center. Here is the site (http://iebctechkenya.tumblr.com/). This should be the start of the investigation into how a Ksh. 10 Billion plus election that has spent extremely heavily on tech has proceeded to dump the tech.

As is the Kenyan style, the biggest problem that the public has is with the PR department of the IEBC. Everything was fine 5 hrs after tallying began until the incrments slowed down to a painful trickle. All through the communication style of the commission was unsatisfactory with all manner of quotations of the law with less and less of what the public actually wanted. Actual results!

Speculation without evidence is generally shunned in my circles so I avoid it. But with scanty information coming from the authorities, throwing stones in the dark tends to get a response.

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The Swing Vote

As predicted or as expected, most citizens here have collapsed into the tribal conclave and are shouting themselves for their favorite politician who can speak their mother tongue.

I have no problem with this. Preferring a tribe-mate is just as natural as being loyal to your family members accepting all their flaws and warts. No-one is perfect anyway and being pretentious and judgmental is rather goody two shoes.

As was infamously intimated by the prime minister a while back, the Kenya elections are a two horse race and the rest just stretching their legs. This is of-course largely true and the most the others can expect to gain from this escapade is to gain exposure, reputation, and some clout back home being a potential presidential contender.

The potential benefit of having a couple of parliamentarians and being the defacto leader (or party owner) of the group helps with post election negotiations for appointments and power share. In the event that there is a runoff, the swing vote is controlled by the lesser candidates who have the loyalty of the voters that would not have voted for the two horses anyway. This is a good position to be in if you know you have no chance of making it to statehouse but want some power nonetheless.

As it stands Mudavadi has the most conspicuous swing vote and yes this is based mostly on tribal numbers. We may lie to ourselves all we want but tribe is king when it comes to politics in this part of the world.

Lets see how things go on the 4th.

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