Tag Archives: Smokin Wanjala

Fraud and vote patterns in Kenya’s 2013 election

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Update: The video link now works. Many thanks to SAIS for fixing it and letting me know.

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The video below has been making the rounds in the Kenyan online community. The Daily Nation even reported on the claims by UCSD Professor Clark Gibson and James Long, Asst. Prof. and University of Washington, that President Uhuru Kenyatta may not have crossed the 50% threshold in the March 4th election. The duo conducted an exit poll (N = 6000) on election day that showed both candidates in a statistical tie at 40.9% for Odinga and 40.6% for Kenyatta. In the presentation Clark and James make the case that exit polling is superior to PVT because it is immune to things like ballot stuffing and tallying fraud. NDI sponsored ELOG conducted a PVT that confirmed the results announced by the Kenyan EMB, the IEBC.

[youtube.com/watch?v=68a3cUrq1gI&feature=youtu.be]

I do not really know what to make of this poll finding by James and Clark at the moment. I am waiting for the actual MP and Governor elections results to be published by the IEBC so I can try and see if the results in these local races were in line with the presidential results.

Supreme Court Judgment on the Presidential Election Petition 2013

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The Kenyan Supreme Court released the full judgment (PDF) following the justices’ unanimous dismissal of Raila Odinga’s petition challenging the election of President Uhuru Kenyatta.

Below are some sections of the ruling.

This Judgment, therefore, may be viewed as a baseline for the Supreme Court’s perception of matters political, as these interplay with the progressive terms of the new Constitution. It is clear that this Judgment, just as it is important to all Kenyans in political terms, is no less important to the Court itself, in terms of the evolution of jurisprudence in the domain of public affairs. It is particularly so, in the light of Section 3(c) of the Supreme Court Act, which vests in this Court the obligation to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth.”

…the respondents are invited to bear the evidential burden. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt…

…the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process – squabbles which occasioned the failure to assess the integrity of the technologies in good time. It is, indeed, likely that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects.

In summary, the evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such.

As I have said before on this blog, the justices had to make both legal and political considerations with regard to this case. I am not a lawyer and cannot comment on the legal aspects of the case/ruling. With regard to the political considerations, I think the court showed its conservative hand – opting for a strategy of letting Kenya’s new institutions grow on their own without strict supervision from the courts; notice the many references to public opinion and perception in the ruling. That is how the court interprets its mandate to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth,” I think.

Kenya awaits Supreme Court verdict

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Kenya’s prime minister Raila Odinga last Saturday filed a petition challenging the declaration of Uhuru Kenyatta as president-elect (with 50.07% to 43.28%) after the presidential elections earlier this month.

In the petition Mr. Odinga cites a host of factors that, in his view, significantly compromised the integrity of the election – including an unstable voter register; inconsistencies and errors in final vote counts; and failures in the electronic tallying system.

In a rally in Mombasa this week Odinga claimed to have won the election with 5.7m votes to Kenyatta’s 4.5m.

With the filing of the petition, the country’s attention has shifted to the Supreme Court. The court is constitutionally mandated to issue its ruling within a fortnight from last Saturday (latest March 30).

Should the court find in favor of Odinga’s petition Kenyans will have a re-run election in late May, with a possible runoff a month after that. The law says that in case of irregularities the court has to nullify the entire (presidential) election. It is unclear if the judges can rule on limiting the re-run to a runoff between Kenyatta and Odinga. If the judges dismiss the case Kenyatta will be sworn in on April 9th.

It is obvious that the ruling will be as political as it will be legal. Six judges (see here) will hear the case as the nominated deputy Chief Justice is yet to be confirmed by the National Assembly. Under normal circumstances five judges would have heard the case to avoid a tie but since the selection of the five would have tilted the case one way or the other all six will be present.

Should there be a tie the status quo will hold and Kenyatta will be sworn in early next month.

So how might the judges vote?

Based on my conversations with people in the know, it appears that the swing justices will be Chief Justice Mutunga and Justice Mohamed Ibrahim. The two are largely expexted to adhere the most to the legal merits and implications of the petition. The eventual ruling will therefore partly depend on the ability of the two to persuade their colleagues. As President of the court, CJ Mutunga will be under pressure to be on the winning side of the ruling.

A tie would be the worst of possible outcomes as it would suggest that the court, by far the most trusted Kenyan institution, is just as divided as the rest of the country.

The court’s only other ruling before this was on affirmative action to increase the proportion of women in the Kenyan parliament to a third. They voted against (arguing for a gradualist achievement of the same), with CJ Mutunga being the sole dissenter.

On the left-right spectrum CJ Mutunga is the most progressive member of the court (and the highest rated public official, despite Kenya’s socially conservative bend). Justices Wanjala, Ibrahim and Ndungu are centrists, while Ojwang and Tunoi are conservative.

Kenyan supreme court takes shape

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Judicial reform in Kenya made another big leap with the appointment of five individuals to the Supreme Court, the highest court in the land. Njoki Ndungu, Jackton Ojwang, Smokin Wanjala, Mohammed Ibrahim and Phillip Tunoi will join the Chief Justice, William Mutunga, and his assistant Nancy Baraza [Ms Baraza has since been replaced with Justice Kalpana Rawal] on the court.

Mutunga and Baraza will champion liberal views on the court – the Church and other conservative elements in Kenyan society unsuccessfully fought against their nomination to lead the Supreme Court. Messrs Tunoi and Ojuang will represent conservative views. Ndungu, Wanjala and Ibrahim are believed to be centrists.

The Supreme Court will provide the final word on constitutional matters as well as petitions involving presidential elections.

Although one can’t dismiss the possibility of political jockeying behind the scenes, the nomination of all seven justices was a coup for Kenya’s civil society. The Judicial Service Commission sought a clean break with Kenya’s muddy judicial history. None of the high-flying judges from the Moi and Kibaki eras got a nod to join the court.

Because this is Kenya, the JSC also made sure that the seven nominees reflected ethnic and regional balance. The ethnic balance in the nominations will ensure that parliament approves them.

Overall the court appears to have a progressive make up, albeit with a rightward tilt. This is good for Kenya.

In related news, the Kenyan parliament also approved the nomination of Keriako Tobiko to be the director of public prosecutions. Mr. Tobiko’s nomination was not without controversy, with civil society groups and a section of MPs accusing him of corruption and incompetence. In the end his nomination passed through.

The next big battle over judicial reforms will be over the appointment of the Attorney General.