Kenya Elections 2022

Kenya Elections 2022: Allegations of a Controversy in the Verification of Presidential Results Emerges a Day after the Declaration of the President Elect

The CIHA blog is fortunate to have Timothy Khabala (Luce Graduate Fellow from Hekima Institute of Peace Studies and International Relations) and the team at Hekima for providing frequent updates on the Kenya elections. Timothy has trained elections officers at a constituency level and subsequently served as a Presiding Officer at a polling station.

This post include four updates of the fast-moving events over the past three days, beginning with the most recent.

(Update 4 – August 16, 2022) 

The Supreme Court – the apex Court in Kenya located in Nairobi, Kenya. Photo credit: COURTESY| CIO Africa

Raila breaks the silence urges supporters to exercise restraint

Mr. Raila’s supporters have been waiting with bated breath for his first public address since the declaration of presidential results on 15 August 2022. Anxious supporters waited for instructions on which way next. In a surprise move, after boycotting the 2017 FPE, Mr. Raila had declared himself the ‘peoples’ president. Consequently, he had himself sworn in as so on 30 January 2018 (John Campbell 2018). This option was highly expected by his supporters who form nearly another 50 per cent of the registered voters. This however was not the case. Mr. Raila made an address on Tuesday 16 August 2022, 1600 hours EAT. In what might appear as a well-coordinated plan between Mr. Raila’s team and four dissenting Commissioners, Mr. Raila’s public address came a few minutes after the latter held their press briefing at a Nairobi City hotel. The four bolted out of the national tallying centre a few hours before the declaration of the presidential results on 15 August 2022. They held a brief press briefing and publically disassociated themselves from the results that were about to be declared by their Chair Mr. Chebukati. In their second presser the four Commissioners cited high-handedness by their Chair in handling the verification process. The Commissioners termed the aggregation of candidates’ results “a mathematical absurdity.” They alleged the total per cent of valid votes cast exceeded the 100 per cent mark, by 0.01 per cent translating to 142,000 additional votes, which, according to them, impacted on the final presidential results in a closely contested race (Ms. Cherera on Citizen TV, 16 August 2022, 1520 hours EAT). They further alleged that the Chair arrived at the final results yet not all results had been received from their source points. The four Commissioners in closing submitted that their Chair did not address their concerns and other concerns raised by different political parties in the presidential results tallying process, the reason why they bolted from the tallying process and disassociated themselves from the results. Their accusations have however been challenged by different political analysts who have contended that for them to come up with a figure of 142,000 being equivalent to 0.01 per cent, they must have known the total valid votes cast. (It is worth noting that if 0.01 per cent translates to 142,000 votes, then 100 per cent will translate to 1,420,000,000 votes, a figure way above the country’s population of approximately 50,000,000). Further, constitutional legal minds have also challenged the four Commissioners’ displeasure of not being involved by their Chair in the final decision of what to declare, on the basis that as the presidential Returning Officer, the Chair is not obligated to convene a plenary and seek the simple majority on what to declare. The simple majority requirement only applies to administrative and policy issues where the Chair does not wear the hat of a Returning Officer.

The four dissenting IEBC Commissioners led by Vice Chair Ms. Cherera during a presser on 15 August 2022 Photo credit: CAPITAL NEWS

The conduct of the IEBC during the presidential verification process as amplified by the four dissenting Commissioners forms the basis for Mr. Raila’s petition. In his public address Mr. Raila has termed the figures announced by the IEBC Chair as “null and void and must be quashed by a court of law.” He further states that in the view of the conduct of the IEBC Chair, “there is neither a legally nor a validly declared winner in the presidential race in the 2022 Kenya general elections.” The Azimio leader however has not mentioned any other irregularities or illegalities that they will be referencing to support their petition. He has up to until 22 August 2022 to file his petition at the Supreme Court. The petition will have to be backed by water-tight evidence considering the fact that IEBC has received a relatively clean bill of health for conducting transparent and verifiable elections. The Elections Observer Group (ELOG) – the coalition of civil society and faith-based organizations affirmed that the results declared by Mr. Chebukati were consistent with what they had projected based on their (ELOG) independent tally. ELOG had projected that Raila would garner 48.70 per cent of the vote against Ruto 50.70 per cent. The group’s margin of error was plus or minus 2.1 per cent (Wycliffe Nyamasege 2022).

The Elections Observer Group (ELOG) at a press conference in Nairobi on 16 August 2022. Photo credit: COURTESY| ELOG

The country continues to enjoy calmness and peace with most people slowly resuming their daily routines with minimal or no disruption. Mr. Raila has urged his supporters and Kenyans at large to continue exercising restraint as his team explores the constitutional and legal avenues at their disposal. Kenyans and the regional nations will be watching the unfolding with keen interest. Kenya is perceived to have made significant strides in the democratization process that has seen the Judiciary perform its duty of what might seem to be autonomy and independence.

(Update 3 – August 16, 2022) 

On Monday 15 August 2022, at 1800 EAT Kenya’s Presidential elections Returning Officer and the Chair of the Independent Elections and Boundaries Commission (IEBC) Mr. Wafula Chebukati declared the incumbent Deputy President Dr. William Ruto of United Democratic Alliance (UDA) Party as the President elect. Dr. Ruto becomes the fifth President (in waiting) of the Republic of Kenya. Dr. Ruto running under the aegis ‘Kenya Kwanza’ (Kenya First) – an alliance of numerous political parties with different voter support bases trounced his close rival Mr. Odinga of the Orange Democratic Movement (ODM) Party. Mr. Odinga a former Prime Minister ran under the coalition dubbed ‘Azimio la Umoja’ loosely translated as One Kenya/Resolution for Unity. The latter had the backing of the incumbent President Mr. Uhuru Kenyatta with Mr. Kenyatta’s Jubilee Party being a key coalition member. Odinga’s loss to Ruto was by a whisker in an election that recorded a low voter turnout of approximately 65 per cent, the lowest in 15 years (Luke Anami 2022).

The general conduct of the elections has been peaceful. The process has also been deemed transparent. The country continues to experience peace as exhibited by the calmness of citizens in many regions of the country. Few incidences of violence were reported in Mr. Raila’s strongholds after the declaration of Dr. Ruto as the President elect on 15 August 2022. Violence was witnessed in Kibera and Baba Dogo in the capital Nairobi, Kondele, Nyalenda and Kisumu-Busia road in the lake side city of Kisumu and Jomvu in the coastal city of Mombasa (Usaid Siddiqui 2022). No fatalities have been reported.

Protesters demonstrate alongside riot police officers in Kisumu following the announcement of the presidential results on 15 August 2022. Photo credit: James Keyi |Reuters

What is next for Mr. Raila

The victory of Dr. Ruto and his running mate Mr. Rigathi Gachagua has been made official via a gazzette notice number 9773 in The Kenya Gazette dated Tuesday 16 August 2022. In the notice the commission Chair Mr. Chebukati has stated that the duo “fulfilled the threshold set under Article 138 (4) of the Constitution of Kenya 2010 which requires that a candidate gets more than half the number of votes cast countrywide and at least 25 per cent of the votes in each of more than half the counties…” (Maxwell Wasike 2022). This officially puts a seal to the presidential election 2022. What options does Mr. Raila then have? Mr. Raila has previously contested for the presidency four times having lost in all the four elections. This is Mr. Raila’s fifth shot at the presidency but again he has lost, this time to a one time attemptee Dr. Ruto. Backed by the celebrated new Constitution 2010 that strengthened the autonomy of the Kenyan Judiciary by among other reforms establishing the Supreme Court, Mr. Raila challenged the 2013 and 2017 presidential results in the highest court on land – the Supreme Court. In his 2013 petition, the Supreme Court upheld the victory of his opponent Mr. Kenyatta as president elect. In the 2017 petition, the Supreme Court ruled in favour of Mr. Raila’s petition by annulling the presidential election. The Supreme Court cited massive irregularities and illegalities in how the IEBC conducted the election. The Court ordered for a Fresh Presidential Election (FPE) pitting Mr. Kenyatta against Mr. Raila. Mr. Raila however boycotted the FPE handing over the presidency to Mr. Kenyatta in an easy win.

Looking at Mr. Raila’s trend of petitions and the confidence that surrounded his 2022 presidential candidature, a petition battle in the Supreme Court is in the offing. Having received the support of the incumbent President and the ruling party/state machinery in his bid, a Raila win was almost guaranteed. Further, Raila’s choice of Ms. Martha Karua – a woman for a running mate was perceived as a plus for him. He was seen as being gender considerate compared to his close rival Dr. Ruto who settled for a fellow man for a deputy. All these did not work in favour of Mr. Raila. He therefore has seven days from 15 August 2022 to file a petition at the Supreme Court challenging Dr. Ruto’s victory. Should this happen, then the Supreme Court will have 14 days up to 5 September 2022 to enter a judgment. Should Dr. Ruto’s victory be annulled, the IEBC will have 60 days up to 4 November to hold a FPE. However, should the Supreme Court uphold Dr. Ruto’s victory and thus no FPE ordered, the President elect Dr. Ruto will be sworn in on the first Tuesday following the seventh day following the date on which the Supreme Court renders the decision to uphold Dr. Ruto’s victory. The incumbent President Kenyatta will therefore officially enter retirement then.

(Update 2 – August 15, 2022) 

Kenya Elections 2022: Kenya gets its 5^th President amidst ‘goods’ and ‘bads’

Kenya went to the polls on 9 August 2022 to elect their political representatives among them the fifth President. Four presidential candidates made it to the ballot, but the race was reduced to a two-horse race, between former Prime Minister Mr. Raila Odinga and the country’s incumbent Deputy President Dr. William Ruto. The general elections were lauded by observers as being “above board” compared to previous elections. Minimal incidences of violence were recorded on the polling day and the days that followed. The observers deemed the elections as peaceful and transparent (Commonwealth 2022). However, anxiety gripped the country following the delayed declaration of the presidential results by the IEBC, instigating a few incidences of violence especially in the precincts of the national tallying centre. After five days of verification and confirmation of presidential results, the presidential Returning Officer Mr. Wafula Chebukati declared Dr. Ruto President elect after garnering 50.49% of the votes cast, narrowly beating his close competitor Mr. Odinga who garnered 48.85% in an election that recorded the lowest voter turnout in the last 15 years. Approximately 14 million out of the 22 million registered voters turned out for polling.

President elect Dr. Ruto (R) receiving his presidential certificate from the IEBC Chair and presidential Returning Officer Mr. Chebukati (L). Photo credit: COURTESY| Getty 

During the laborious verification and confirmation process of presidential results, politicians and agents allied to Mr. Odinga decried disdaining activities by some IEBC officials. This elicited sentiments of a possibly rigged election leading to the IEBC chairman warning party agents of ‘treating a straight forward process as a forensic audit’ (Brian Oruta 2022). In a turn of events, four out of seven Commissioners of the IEBC led by the Vice Chair Ms. Juliana Cherera disassociated themselves from the pronouncement of the presidential results, a few hours before the Chair declaring the results. They cited the opaque nature in which the results were handled as the main reason for disassociating themselves (The EastAfrican 2022). This act, coupled with the earlier cry by Mr. Odinga’s agents has already set the stage for a possible petition, challenging Dr. Ruto’s win. Mr. Odinga was the only presidential candidate who skipped the presidential results declaration ceremony held at the national tallying centre from 1500 hours to 1800 hours EAT.

Spontaneous incidences of violence have since been reported in areas perceived to be Mr. Odinga’s support base like Kibra and Baba Dogo areas in the capital Nairobi and in Kondele and Kisumu-Busia road in the lake side city of Kisumu. Kenyans have been urged to keep calm and maintain peace as exhibited during the polling day and days prior to the announcing of the presidential results. This call has been made by the clergy, the employers’ association and media houses – who are now airing peace messages and songs. President elect Dr. Ruto too reiterated the need to embrace each other and remain peaceful. Mr. Odinga has not made any public appearance or speech since the declaration of Dr. Ruto as the president elect, neither has the incumbent President Mr. Uhuru Kenyatta. We pray that peace prevails in Kenya as the country goes through the transition of power.

(Update 1 – August 14, 2022) 

Kenya Elections 2022: Presidential Results Verification and Confirmation Process Causes Anxiety among Politicians

Kenyans went to the polls on 9 August 2022 to elect their political representatives. Five days after closing of polling, the country is yet to know their fifth President elect. The general elections were lauded by both local and international observers as being ‘above board” compared to previous elections in terms of the polling processes and the checks and balances put in place by the electoral body, the Independent Electoral and Boundaries Commission (IEBC). Minimal incidences of violence were recorded on the polling day and the days that followed. The observers affirmed the elections as peaceful and transparent (The Commonwealth 2022). However, the delay by the IEBC in declaring the presidential winner caused anxiety among the political class which has the potential ripple effect of descending to the electorates. On their hand, IEBC asserted that the delay is not a point of concern because the agency has up to seven days from the day of polling to declare the presidential results. This legal period lapses on Monday 15 August 2022 (Patrick Vidij 2022).

Voters woke up as early as 4 am to queue up in order to exercise their democratic right by the ballot. Polling began on time (0600 hours) and ended on time (1700 hours) in most polling stations, giving the electoral body – IEBC amble time to commence the counting and tallying of ballots cast. There were not many widespread challenges during the polling process. However, elections of particular elective seats were postponed in different parts of the country due to technical challenges. For instance, gubernatorial elections were suspended in the costal county of Mombasa and western county of Kakamega, due to errors that included wrong pictures for the candidates and their details. Parliamentary elections for Pokot South and Kacheliba constituencies were also postponed for the same reason to a later date to be communicated by the IEBC (Dennis Musau 2022). Other notable challenges encountered were referred to as resolvable by IEBC and did not impact negatively on the polling process and its integrity. They included delays in opening polling stations in some places, in which case, the Presiding Officers of affected polling stations were obligated to compensate the lost time by extending the polling period with the equivalent time. Cases of voters not being able to be identified electronically at the first level through the Kenya Integrated Election Management System (KIEMS) were also common place. This was however resolved by the elaborate three-level identification protocol that was set up in KIEMS. The KIEMS had the provision for biometric (figure prints) identification, alpha-numeric identification (name or ID number), facial identification (photo-metric) and lastly where the three fail then Presiding Officer’s manual-physical identification in the presence of party agents.

An IEBC Polling Clerk identifies a voter using the KIEMS. Photo credit: File | Nation Media Group

The counting of ballots cast and tallying of valid votes cast commenced in earnest on Tuesday 9 August 2022 evening in most polling stations countrywide. The order and protocol of the counting and tallying process set aside by the IEBC was lauded by both political parties’ agents and observers. The process was seen as transparent and uncomplicated. Presidential votes were the first in the order of counting and tallying at the polling stations. Upon completion and confirmation of the total valid votes cast, the presidential results declaration form 34A was prepared and signed by both electoral officials and political parties’ agents present. The agents were issued with carbon copies of the form 34A, another copy was displayed in a public point within the respective polling station and a digital copy of the original was transmitted directly to the national presidential tallying centre in the country’s capital, Nairobi. The hard copy of the original was later handed over to the Constituency Returning Officer (RO) at the Constituency tallying centre for verification and further collating and tallying of presidential results for the whole constituency.

An IEBC Presiding Officer displays presidential casted ballots ready for counting during the elections at the St. Mathews Hall 01 Polling Station in Karen Ward, Lang’ata Constituency, Nairobi City County, Kenya on 9 August 2022. Photo credit: COURTESY/Tim Oumar

The RO in turn populates all the valid votes cast for each presidential candidate with their respective totals on form 34B and transmits a digital copy to the national tallying centre. The RO then travels to the national tallying centre in the capital Nairobi, with the original form 34As from all their polling stations in the constituency and one form 34B containing all the results from all the polling stations. These two sets of original documents are subjected to verification and confirmation against the digital copies submitted, at the national tallying centre. Once the figures are confirmed to correspond to those on the digital copies sent directly by the various Presiding Officers from their polling stations, the results are declared as official. The total confirmed results are then computed and presented in a form 34C and the candidate who meets the constitutional threshold of garnering 50%+1 of the total votes cast in the country and 25% of votes cast in 24 out 47 counties, is declared the President elect.

A Governor-elect allied to presidential candidate Odinga argues with a police officer at the national tallying centre during the on-going verification and confirmation of presidential results on August 13, 2022. Photo credit: Dennis Onsongo | Nation Media Group

This laborious verification and confirmation process seems to have delayed the declaration of presidential results but it is very important to the IEBC. In 2017, the highest court on land – the Supreme Court annulled the 2017 presidential results. The basis of the annulment was that IEBC handled the presidential election as an event, only interested in the results, yet an election is a process. There were a lot of irregularities and illegalities that were cited and found to have compromised the quality of the presidential results of 2017. The IEBC is determined not to have a repeat of 2017 and is determined to deliver a fair, free, credible and verifiable election, says the commission’s Chair. The process of achieving this seems to be causing anxiety among politicians especially those from the two front runners and in effect trickling down to their respective electorates who are beginning to exhibit some form of tension. If left unchecked, this could taint the already lauded peaceful and transparent process. The country awaits the declaration of their fifth President before Tuesday 16 August 2022.