Electoral Institutions, Perceptions, and Consolidation of Kenya’s Democracy
Kenya’s democracy dates back to independence when the newly established republic embraced a multiparty political system. Soon after independence, a series of constitutional amendments constrained the political space, transforming Kenya first into a de facto one-party state in 1964 and then into a de jure one-party state in 1982. A push for political liberalization returned the country to a multiparty system in 1991. There was hope then that multiparty elections would finally give Kenya the democracy for which it yearned. This hope diminished with the elections that followed, culminating in a violent electoral conflict in 2007-8 which paved the way for electoral reforms. The promulgation of Kenya’s second constitution in 2010 established various electoral institutions aimed at responding to challenges relating to the consolidation of Kenya’s young democracy. However, these reforms have not eliminated the high-stakes elections that create fear and uncertainty of political [in]stability related to disputed electoral outcomes. This paper uses Afrobarometer data to argue that the problem with Kenya’s elections lies in the perception of the Independent Electoral and Boundaries Commission’s (IEBC) ability to guarantee credible free fair elections as demonstrated by the election petitions presented before the Supreme Court of Kenya challenging the legitimacy of the 2013, 2017 and 2022 election outcomes. Low trust levels in electoral management should impact negatively on the legitimization of elections and the subsequent democracy consolidation process in Kenya. But surprisingly, the Afrobarometer data does not find a strong correlation between mistrust in IEBC and trust in democracy especially after the institutionalization of elections by the 2010 Constitution of Kenya.
This essay uses online data from the Afrobarometer public opinion survey on democracy in Kenya to examine the implications of perceptions of the IEBC and election management for the legitimacy of elections and democracy. It has four sections: an introduction which discusses the theory of liberal democracy, background on elections in Kenya, the data on perceptions of the IEBC and election management, and a conclusion.
Strong formal institutions are necessary for the progress of democracy in any democratic state. Institutions are humanly devised constraints that structure political, economic, and social interactions (North, 1991, p. 97). Election management bodies are fundamental institutions in the electoral process, due to their role in securing, protecting, and promoting democracy (Abuya, 2010). Election management is a critical determinant of the perception of elections as credible, free, and fair or not and the subsequent progress of the democratic consolidation process. The perceptions of citizens about credibility and fairness impact the legitimacy of elections and the acceptability of their outcomes (Pippa, 2015). The success of any election is gauged by the extent to which it promotes or hinders political stability (McAuslan & Ghai, 1966)
While elections alone are insufficient institutions for democracy, no other institution precedes participatory, competitive legitimate elections (Lindberg, 2006). Elections are the first step without which democracy cannot be born (Bratton & Van de Walle, 1997). They are important pillars of democracy that provide citizens the opportunity to exercise their sovereign right by electing their leaders and at the same time legitimizing their government (Lindberg, 2006). Furthermore, credible, free, and fair elections promote the progress of democracy and its deepening by promoting political and civil rights (Lindberg, 2006) Regular, free, and acceptable elections indicate whether basic constitutional, behavioral, and attitudinal foundations are being laid for a sustainable democratic rule (Bratton, 1998). Building on these arguments, this essay observes that Kenya’s aspiration to consolidate its emerging democracy through multiparty elections is problematic. The problem lies in the perception of the election management body’s capacity to guarantee open and fair electoral competition by following the laid down rules as stipulated in the Constitution of Kenya and other rules governing election management. Every five years of the electoral cycle the Independent Electoral and Boundaries Commission (IEBC) finds itself on the receiving end when election outcomes are disputed – at times with violence – eroding the democratic gains and threatening to destabilize the country.
While there are many views on what democracy is, this study adopts the Liberal democracy framework that emphasizes the centrality of elections in establishing democratic governments, rule of law, separation of powers, and the protection of basic liberties of speech, assembly, religion, and property (Zakaria, 1997, p. 22). Consolidation of democracy refers to following the democratic rules for competitive inclusive elections that guarantee the political and civil rights of the citizens (Dahl, 1998; Dahl, 1971). Democratic consolidation is attained when democracy is “the only game in town” and when no major political groups are advocating for a return to authoritarian rule or an overthrow of the democratic system (Linz & Stepan, 1996).The level of consolidation can be assessed in terms of the supremacy of the rule of law, such that even in disputes the use of violence is not an option. Consolidation and deepening of democracy thus implies stability by avoiding democratic erosion and breakdown until disloyal players are eliminated, neutralized, or converted (Schedler, 1998, pp. 95- 103).
2.0 Background of Elections in Kenya
The process of building democracy and the challenges of democratic consolidation are contextual and unique to each state. In Kenya, historical, socio-economic, and political factors have each played a key role in determining the trajectories of the democratization process. The challenges associated with election management in Kenya are therefore located within this context.
When Kenya attained independence in 1963, it embraced multiparty democracy. It inherited a Westminster parliamentary system with a Senate and a National Assembly. The dominant parties, namely, Kenya African National Union (KANU) and Kenya African Democratic Union (KADU). KANU formed the government with Jomo Kenyatta becoming president and Jaramogi Oginga Odinga his deputy. In 1964, KADU disbanded and joined KANU, purportedly in the national interest of making Kenya a de facto one-party state (Ajulu, 1999). Although the independence constitution of 1963 created an electoral management body to oversee elections, the institution lacked independence from the onset. The commissioners were appointed by the governor-general. Following the constitutional amendment of 1966 (The Turncoat Rule), the office of supervisor of elections was created to supervise elections and put under the Attorney General’s office. As an electoral body, it played a subdued role since civil servants became increasingly involved in the management of elections (Independent Electoral and Boundaries Commission, 2020).
In 1982, Kenya became a de jure one-party state following a constitutional amendment. The oneparty system greatly affected the ability of the electoral management body to promote free and fair elections, as the political competition was reduced to a one-party affair. With the shrinking of political space, agitation for multiparty politics intensified in the late 1980s and early 1990s. Internationally, the early 1990s is associated with the third wave of democratization that opened up more democratic space in Africa for political change following the disintegration of the Soviet Union as a global power (Huntington, 1993). Kenya’s politics were influenced by these international trends.
In 1991, the repeal of section 2 (A) of the constitution that had established the single-party rule re-established multiparty politics in Kenya (Adar, 2000). This required election reforms. Parliament abolished the office of the Supervisor of Elections and instead recognized the Electoral Commission of Kenya (ECK) as the sole body responsible for elections. (Independent Review Commission, 2007). ECK had operational independence from the government structures by recruiting its staff and did not rely on the previous local administration structures, a significant departure from the past. However, President Moi unilaterally appointed the commissioners of ECK, putting into question the independence of the institution, and the opportunity to establish a fair electoral body was lost. As argued by Nasong’o (2007), the problem was that there was political liberalization without democratization of political institutions and the rules of the game.
The flawed multiparty elections over the years exploded into a violent electoral conflict in 2007-8 which was blamed on the failure of the election management body to dispense its mandate as a neutral body (Independent Review Commission, 2007). The 2007-8 electoral violence provided an opportunity to review the Constitution, leading to electoral reforms. Following the promulgation of a new Constitution of Kenya in 2010, there was renewed hope that the institutionalization of multiparty elections would yield peaceful predictable stable electoral cycles. However, this has remained elusive. Electoral competition is as disappointing as it was in the past with high-stakes elections that create anxiety and fear of electoral violence every five years of the electoral cycle because of the electoral disputes revolving around election management.
3.0 Election Management in Kenya and Perceptions of IEBC.
IEBC is the electoral body established under article 88(1) of the Constitution of Kenya 2010. Art 88(4) mandates IEBC to conduct elections and supervise referenda and elections to any elective body or office established by the Constitution or any other elections prescribed by an Act of Parliament. Properly administered elections are critical for the credibility and legitimacy of elections. IEBC encountered several challenges that negatively impacted perceptions of the credibility of elections, however. Among them was low trust in the independence of IEBC as an autonomous body free from the control of the executive, due to the continuing role of the executive in the appointment of IEBC commissioners. The 2010 Constitution, Article 81(1) sought to guard against any interference in the electoral body by establishing an independent IEBC, but the appointment of the commissioners is still done by the president after the vetting by parliament. As such, the question of the independence of the institution arises.
Low levels of trust in the autonomy of the election management body impact the perceptions of neutrality of IEBC in executing its mandate. IEBC is at times perceived as acting in favor of the executive. In 2017, the opposition coalition of parties under the umbrella of the National Super Alliance (NASA) accused IEBC of rigging elections by manipulating figures to increase the votes in favor of the pro-regime Jubilee coalition of parties (Cheeseman, Karuti , Lynch, Mutuma , & Willis, 2019; Cheeseman, 2018). This eroded the public trust in IEBC resulting in disputed election outcomes that escalated into violence that threatened to destabilize the country and at the same time eroded the gains of democracy attained. To support this argument, the Afrobarometer public opinion survey on Kenya shown in figure 1 indicates that the level of trust in IEBC declined from 53% in 2011 to 34% in 2016. This can be attributed to the disappointment of the opposition coalition in the 2013 presidential results that it contested in the supreme court but the ruling was in favor of their competitors in the Jubilee party. Although the opposition accepted the verdict of the court, their supporters felt that their victory had been snatched from them (Karuti & Odote, 2019). In 2008, trust in IEBC was lowest at 25% following the 2007-2008 electoral violence that was blamed on flawed elections. The highest level of trust in IEBC was from 2003 to 2005 which was occasioned by the opposition win during the 2002 elections under the National Rainbow Coalition (NARC) that brought to an end the Kenya African National Union Party (KANU) rule of forty years since independence.
Elections are high-pressure events that extend to the electoral body, especially in Kenya where elections are high stakes. IEBC commissioners have always experienced pressure to resign whenever election results are disputed. This erodes the image and trust in the electoral body as an independent institution. The Constitution of 2010 sought to guard against this by creating security of tenure of office for IEBC officers. However, this has not deterred politicians from attacking IEBC when election results are not in their favor. After the 2013 and 2017 elections, the IEBC commissioners came under pressure to resign from the opposition accusing IEBC of acting in a partisan manner and not conducting the elections fair manner (The Carter Centre , 2018 ). In 2017, pressure mounted on IEBC commissioners to resign following the historic nullification of the presidential result – the first-ever case in Africa and the fourth in the world on the grounds of illegalities and irregularities (Election Observation Group, 2017). Although this nullification was an indicator of democratic consolidation, it nonetheless eroded the public trust in IEBC’s capacity to conduct free fair elections. It was also perceived as a confirmation of the opposition’s allegation that elections are rigged in favor of the incumbent, further casting doubt on the credibility of elections. In addition, corruption scandals associated with IEBC tainted the image of the institution. After the ‘chicken gate’ scandal – where it was alleged that top election officials of IEBC were bribed to award Smith and Ozman (a British company that was found guilty by the United Kingdom courts of bribing the Kenyan election officials to get the tender for printing the 2013 election materials) (Election Observation Group, 2017) –the commissioners finally bowed to pressure and resigned.
The level of efficiency and effectiveness of IEBC affects the perception of election management. Like its predecessor, IEBC is not adequately equipped with enough resources to function well for the effective and efficient execution of its mandate. Funds are released late by the government, delaying their work such as tendering processes for election materials. Capacity building in terms of human resources and timely funding is critical for the planning and execution of electoral mandates. The new commissioners were replaced in February 2017 just six months before the general elections. After the 2017 elections, four commissioners resigned unceremoniously, once again jeopardizing the effectiveness of IEBC. While calling upon the appointing authority to expedite the process of replacing the commissioners that had resigned, the chairman of the IEBC pointed out that the electoral body could not function properly without the other four commissioners. Plenary sessions could not take place due to lack of quorum. (Kenya News Agency, 2018).
It was not until September 2021 that the commissioners were replaced, less than one year before the 2022 general elections. The legality and constitutionality of the decisions made by the three commissioners (including by-elections) were challenged in the high court on the grounds of IEBC not being properly constituted. In the case of Isaiah Biwott Kangwony v Independent Electoral & Boundaries Commission & another , the high court ruled in favor of IEBC. The resulting trust deficit has made Kenya’s elections one of the most expensive elections in the world at 25USD per voter (Karuti & Mboya, 2021). The cost drivers are extra features put on the ballot papers, transparent ballot boxes which have extra security seals, use of technology in elections, and hiring of extra human resources due to the increased number of voters during elections (KTN News, 2017).
IEBC has to continuously register voters and regularly review the voter’s register, which has always elicited a lot of controversies. Oftentimes, IEBC is accused of not cleaning up the voter register to remove the names of those that have died or of other inconsistencies such as double registration of voters. (Election Observation Group, 2017).
These are some of the basis for suspicion of rigging elections and ultimately rejecting electoral outcomes. The lack of timely communication and transparency in decision-making by IEBC is another factor eroding trust in the institution. Lack of consistent, regular communication creates suspicion, allowing fake news and propaganda to take over especially through social media platforms as was the case in the 2017 elections (Election Observation Group, 2017). Moreover, the delay in announcing election results with little communication from IEBC aggravates anxiety and suspicion of rigging. According to the Carter Center Elections Observer Group, in the 2017 elections, IEBC failed to clarify that the results used to declare President Kenyatta the winner of the presidential elections were provisionally collected from the electronic forms received from the polling stations. Furthermore, IEBC did not utilize the seven days window provided by law to receive all the ballots from the polling stations for verification but instead used the scanned copies to tabulate the results and hurriedly announced the results. These formed the basis of challenging the 2017 presidential results at the Supreme Court which could have been avoided. However, the scanned copies were available to party agents and candidates for verification. Still, an independent tabulation estimated results by Election Observation Group (ELOG) were consistent with those released by IEBC (The Carter Centre, 2018). To date, the same results are available on the IEBC website and no one has gone to court to challenge them.
Following the nullification of the 2017 presidential results and the low levels of trust in IEBC at 34% in 2016, it would be expected that Kenyans would not trust their elections to be credible. Surprisingly, Afrobarometer found that a significant majority 54% of Kenyans believe that the 2017 elections were free and fair while 42% felt that the elections were neither free nor fair as shown in Figure 2.
The low levels of trust in IEBC in 2017 at 34% (see figure 1) and the high trust in elections conducted by the institution in the same year at 54% ( see figure 2) is a paradox. These findings by Afrobarometer are consistent with the liberal democracy theory which emphasizes the centrality of elections in the democratization process of a state. It means that Kenyans trust the institution of elections as the best mode of attaining democracy through the rule of a democratically elected government as shown in figure 3. A 78% majority of Kenyans believe that elections are the best method of establishing democratic governments and reject other methods.
The findings in figure 3 also imply that despite the challenges associated with election management, Kenyans want democracy and reject any form of rule as shown in figure 4. Since 2002, democracy is highly rated as the preferred political system comparable to no other. Kenyans strongly reject the one-man rule, military rule, and one-party rule. Even when there is a decline from 79% to 65%, trust in democracy remains significantly high at 65%. There is renewed optimism in 2016-2021 showing an upward trend of 67%,71% and 78% respectively. Therefore, the problem with Kenya’s elections evidently lies elsewhere in low perception of IEBC’s capacity to function as an effective, efficient and autonomous institution in election management. The prospects of consolidating Kenya’s democracy are high if the electoral body is strengthened and empowered to deliver its mandate.
Election management is a continuous process with the potential of promoting democracy. Electoral cycles provide useful lessons for reforms. No sooner do elections end than planning for the next elections begins. Efforts should be put to strengthen Kenya’s electoral management institutions for the progress of democracy. Although the 2010 constitution institutionalized elections and established an electoral management body as custodian of elections, the institution has not exuded confidence from the citizens as a fair arbiter. Elections remain high stakes. The credibility and legitimacy of elections depend on the perception of whether elections are free and fair resulting in acceptable electoral outcomes. IEBC should aspire to meet the requirements of Art 81 (e) (v) of the Constitution of Kenya which prescribes that elections should be administered in an impartial, neutral, efficient, accurate, and accountable manner in order to build confidence in the people.
Further, elections are high-pressure events with high stakes. They have remained so despite the Constitution of 2010. Elections precipitate an outbreak or recurrence of violence when perceived as flawed. IEBC should strive to make elections a nation-building exercise by actively engaging communities at the grassroots through increased voter and civic education to boost the level of trust. Cost-cutting approaches should be explored to reduce the cost of democracy. Since elections provide the means of peaceful transfer of power, they need to be conducted in a way that delivers a peaceful political contest by constant, timely communication and engagement of stakeholders throughout the electoral period and more so during elections to allay any fears or suspicion that arises when there is no communication. Acceptable electoral outcomes contribute to stability and other nation-building activities. To improve the management of future elections, there should be timely execution of tasks and long-term investment in the procedure. Proper timely facilitation is key for IEBC to deliver its mandate.