Kriegler // Consolidated Final Report

CHAPTER 1

THE 2007 ELECTIONS IN KENYA: INTRODUCTION

1.1 Background

On 27 December 2007 some ten million Kenyans went to the polls in what was generally anticipated to be the most hotly contested and close-run presidential, parliamentary and civic elections in the country’s 45 years since emerging from British colonial rule. The register of voters had been swelled since the previous elections by several million new registrations, many of them young first-time voters, and the Electoral Commission of Kenya (ECK) had doubled the number of voting stations to 27 555, arranged in some 20

000 polling centres.

Campaigning at all three levels of the contest had been vigorous, characterised by robust language occasionally lapsing into ethnic hate-speech and deteriorating into violence. Since the constitutional referendum in 2005, political discourse in Kenya had been sustained at a high pitch and tended to focus on the presidential contest. The two main presidential candidates, incumbent President Mwai Kibaki and former ally Mr Raila Odinga, had led opposing sides in the referendum, which was won handsomely by the Odinga side. It was therefore hardly surprising that a prominent feature of the ODM parliamentary and presidential campaigns was the claim that only rigging could prevent their taking power at the elections. This was particularly serious as public comment on the manner and timing of the appointment of the majority of electoral commissioners during 2007 had already cast a shadow of suspicion over the ECK’s impartiality. State power in Kenya, harking back to the country’s colonial past and decades of one-party rule, remained vested in a centralised executive exercising control through a network of provincial administrators/district commissioners, a vocal but relatively powerless legislature and a compliant judiciary exercising few checks and balances. The presidency was, rightly, seen as the ultimate political prize. Elections in Kenya have been characterised by intensified awareness of ethnic divides and deep-seated historical land grievances, especially among rural communities. President Kibaki, heading the Party of National Unity (PNU) ticket and drawing his support mainly from the Kikuyu, Embu and Meru communities of Central and central Eastern provinces, campaigned principally on his socio-economic record.

Mr Odinga at the head of the Orange Democratic Movement (ODM), with the support of largely the Luo, Luhya, Kalenjin and some smaller ethnic communities, vocalised the need for fundamental political and socio-economic reform and devolution of state power. Although the emphasis was more pronounced at the civic and parliamentary levels, and in

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the rural areas, the ethnic configuration of the PNU and the ODM, and the origins of the two main contenders in the presidential contest, remained a factor. Opinion polls predicted a close contest, Odinga leading but Kibaki later narrowing the gap. The PNU, though registered as a political party under Kenyan law as it then was, was in reality an electoral alliance. The ODM, though also recently assembled, was a fully-fledged political party, more cohesively organised and hence generally posting a single candidate in each of the provincial and civic contests. The PNU, though uniting behind their single presidential candidate, in the other two elections allowed the party’s various components to field candidates under their individual banners, often in competition with one another.

Having regard to the scope and complexity of the undertaking, polling, counting and announcement of results seemed satisfactory – wholly unjustifiably, as would become only too apparent in due course. All also seemed well (once again deceptively so) with the transmission of the requisite documents to returning officers at constituency level and the onward transmission by them of data to the Kenyatta International Convention Centre (KICC) in downtown Nairobi where the ECK had established its national data tally and media centre.

There, however, there were ominous portents from the outset. Commissioners and staff of the ECK proved ill-prepared for the relatively straightforward but highly sensitive exercise of receiving, verifying, tallying, tabulating and announcing the presidential results. The ensuing spectacle left an indelible impression on visitors to the media centre and on millions of television viewers. Six months later, informant after informant around the country could vividly recall their astonishment and anger at the fiasco and could mimic and quote the ECK chairman verbatim.

In the event the PNU and its scattered array of allies were defeated in the parliamentary and civic elections. Also, as results trickled in, first from ODM strongholds and only later from the PNU heartland, President Kibaki trailed most of the time and only started catching up well into the tallying exercise. He was ultimately announced the winner (by 231 728 votes) in the late afternoon of 30 December 2007, and then hurriedly sworn in, notwithstanding vociferous protests that the result had been rigged by the ECK. These protests and an ODM press conference were abruptly silenced by a news blackout and summary security clampdown as armed soldiers bustled candidates, party agents, diplomats and domestic as well as international observers out of the KICC.

Some observers were aghast, others who had been allowed into the tally centre were volubly incensed by what they regarded as evidence of malfeasance on the part of the ECK committed in their very presence. Upward adjustment of already announced results from some populous pro-Kibaki constituencies, seemingly favouring the President, fanned the flames of suspicion. Televised utterances by Chairman Kivuitu only served to

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make matters worse, as did a hurriedly composed media statement released by four out of

twenty-two commissioners, commenting on the turn of events and calling for calm.

Widespread and often ethnically motivated violence erupted and rapidly spread. Over the ensuing six or seven weeks approximately 1,150 people were killed, property damage ran to billions of Shillings and some 300 000 Kenyans were forced to flee their homes and livelihoods.

1.2 Scope of mandate

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Pursuant to the political pact brokered by Mr Annan and his colleagues, the seven members and the secretary of IREC were consensually identified and formally appointed by President Kibaki under the Commissions of Inquiry Act (Cap. 102). IREC’s terms of reference (ToRs) were published in Gazette Notice 1983,Kenya

Gazette of 14 March 2008 (annex 1.A) and mandated examination of the 2007

elections from a number of different angles:

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The constitutional and legal framework to identify any weaknesses or

inconsistencies.

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The structure and composition of the ECK in order to assess its independence,

capacity and functioning.

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The electoral environment and the role of the political parties, civil society, the

media and observers.

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The organisation and conduct of the 2007 elections, extending from civic and voter education and registration through polling, logistics, security, vote-counting and tabulation to results-processing and dispute resolution.

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Vote-tallying and -counting to assess the integrity of the results of the entire

election with special attention to the presidential contest.

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Assess the functional efficiency of the ECK and its capacity to discharge its

mandate.

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Recommend electoral and other reforms to improve future electoral processes.

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Within six months to submit to President Kibaki and the Panel its findings and

recommendations which are then to be published within 14 days.

1.3 Overview of report

This report first outlines how IREC set about executing its mandate, then details some of the salient aspects of its activities and findings, broadly discussed by reference to the ToRs, and concludes with a number of specific recommendations aimed at preventing a