It is exactly five years since Chris Msando, the Independent Electoral and Boundaries Commission (IEBC)’s ICT manager, was brutally killed in mysterious circumstances. Msando was murdered after giving media interviews days before the August 2017 election in which he spelt out in detail the various measures he and his ICT team were taking to prevent technical glitches and rigging during the election.

Then there was a lot of hue and cry for justice, but efforts to investigate and prosecute Msando’s murderers have come to naught; they have yet to be found or prosecuted.  Chances are they will never be found.

At that time, there were attempts to sully Msando’s reputation and cast doubts about his personal integrity. His body was found alongside that of a girlfriend, whose parents are wondering to this day what warranted the death of their 21-year-old daughter. The killings did, however, send a chilling message.

A history of flawed elections

Kenya has held few elections that have been completely free and fair, and which do not carry the threat of violence. Almost every election in the country has resulted in some form of violence, from the so-called “ethnic clashes” in the Rift Valley in the 1990s to the widespread violence of 2007/2008 that left more than a thousand people dead and hundreds of thousands displaced.

After Mwai Kibaki was hurriedly sworn in as president on the evening of 30 December 2007, the late chairman of the now defunct Electoral Commission of Kenya, Samuel Kivuitu, went on record saying that he did not know who really won that election. According to Ken Flottman, an American lawyer who had the opportunity to observe the 2007 elections first-hand, two things contributed significantly to the violence that followed that election: the ban on live broadcasting ordered by the then Internal Security Minister John Michuki and the government’s decision to pull down the media’s reporting of the results.

Since the events of 2007/2008, Kenyans have lived with the fear of a stolen or rigged election resulting in large-scale violence. This fear has made us wary of scrutinising election-related irregularities too closely. We assume that any dispute regarding irregularities, legal or otherwise, will now be resolved in the Supreme Court that was formed after the 2010 constitution was promulgated. The constitution and the various commissions and bodies that it established, including the Supreme Court, are seen as a bulwark against flawed electoral processes.

But are they? In March 2013 the Supreme Court legitimised what many instinctively believed was an election that was ethically, constitutionally and technically flawed, not least because IEBC officials had the gall to announce sometime around midnight during vote-counting that that they would be shutting down the tallying centre because they needed to sleep, only to announce the election results in the early hours of the next morning.

Perhaps the most disturbing aspect of that election was that the presidential candidates Uhuru Kenyatta and William Ruto had cases to answer at the International Criminal Court. But this did not deter Kenyans from voting for them. On the contrary, a large number of Kenyans decided that the election would be a “referendum against the ICC”. They even remained silent when the IEBC’s BVR kits failed and manual registers appeared at polling stations. A “green register”, which no one had heard of before, also miraculously made an appearance.

The media at that time had been effectively “silenced” for the sake of “peace” and so did not ask hard questions (such as why the commission was shutting down the tallying centre in the middle of vote-counting). Although the Supreme Court ruled that the election was free and fair, scandals that emerged later regarding the procurement of non-functioning BVR kits and the “Chickengate” scandal involving kickbacks given by a British printing firm (whose directors were prosecuted and jailed in the UK) did raise suspicions about whether the IEBC’s former office-bearers were corrupt. Later, the auditing firm KPMG revealed that the voters’ register may have contained the names of as many as one million dead voters. 

Most disturbingly, the High Court had earlier ruled that it had no jurisdiction to determine the suitability of candidates vying for the presidency as this was the job of the IEBC. So, Chapter Six of the Constitution on integrity and leadership was essentially swept under the carpet. This allowed all manner of shady characters, including Mike Sonko, who was the Jubilee candidate and who was eventually hounded out of office by his own party, to vie for office.

The auditing firm KPMG revealed that the voters’ register may have contained the names of as many as one million dead voters.

In 2017, the public’s trust in the IEBC’s ability to deliver a free, fair and credible election was tested again. Signs that the 2017 election was not going to be free and fair began emerging even before a single vote was cast. The mysterious murder of Msando a week before the election was an ominous sign that things were not going smoothly and transparently. On election day, many of the critical forms 34A and 34B that were used to tally the vote seemed to be missing or had not been transmitted electronically.

The perception that the IEBC had been compromised or was just plain incompetent was strengthened by the IEBC’s own commissioner Roselyn Akombe, who cited various anomalies in how the commission conducted its business after she fled the country and resigned. Some reports also suggested that local and foreign firms that were contracted to manage the electronic transmission of results had dubious reputations. Then, as now, there were many questions being raised about the IT company hired to provide voting technology and services for the elections, and whether the IEBC was really up to the job.

Pegging hopes on the judiciary

The nullification of the August 2017 presidential election results by a majority on the Supreme Court bench renewed hope that the country could resolve electoral disputes and deliver free and fair elections peacefully through the judiciary. The Supreme Court’s decision stunned Kenyans and the world. The Economist called it “an astonishing decision” while the New York Times noted that “the ruling offered a potent display of judicial independence on a continent where courts come under intense pressure from political leaders”. Western and other nations, whose election observers were quick to declare this election free and fair, were caught with their pants down.

The Supreme Court sent an important message to the country’s citizens – that no one, not even the president, is above the law and the constitution. As the then Chief Justice David Maraga stated, “The greatness of any nation lies in its fidelity to the constitution and to the rule of law.” Countries in Africa and elsewhere that had become accustomed to electoral fraud and violent elections could now look to Kenya for inspiration.

The Supreme Court sent an important message to the country’s citizens – that no one, not even the president, is above the law and the constitution.

But the subsequent 26 October 2017 repeat election could hardly pass the test of being free or fair because only one leading presidential candidate – Uhuru Kenyatta – was running. The opposition leader Raila Odinga had urged his supporters to boycott the election (which they did) because the IEBC had still not resolved many of the issues raised in the Supreme Court ruling. It was essentially a one-horse race that led to the election of Uhuru Kenyatta and his deputy William Ruto. Many international observers said that postponing the election with a view to making the electoral process more credible would have been a wiser option, which is what Ghana did prior to its 2016 election.

Lessons from Ghana 

Ghana managed to avert a looming crisis by significantly improving its electoral processes. In the months preceding the 2016 elections, violence broke out during various electoral processes and politicians began using hate speech in their campaigns. However, Ghana managed to have a peaceful election because its Electoral Commission, political leaders and civil society took steps to ensure that the elections were credible.

First, the Electoral Commission took highly visible steps to improve the credibility of the voters’ register by cleaning it up and publishing the list of names online. Second, it made it easier for people to vote; Ghanaians could change their original polling station to one that was near the place where they lived or worked. Third, the National Collation Centre, where the election results were tallied, was made more accessible to the media, civil society and party supporters. Local observers stationed in each of the country’s 275 constituencies could also record the election results. Because the polling station data had become so accessible and transparent, Ghanaians knew the results of the election long before they were announced by the commission. Has the IEBC ensured these processes? The IEBC has allowed the media to set up parallel tallying centres at polling stations but it is not clear whether this is enough to ensure transparency. On the contrary, conflicting figures from the IEBC and the media might ignite tensions in a country where there is already so much mistrust of the electoral body.

Ghana managed to have a peaceful election because its Electoral Commission, political leaders and civil society took steps to ensure that the elections were credible.

Many Kenyans, including Raila Odinga, who has the support of the outgoing Uhuru government, thanks to the famous 2018 “handshake” between him and the president, have stated that they are not convinced that the IEBC can be trusted to conduct a free and fair election this month. A KPMG audit report has revealed weak protections against hacking of the voter database and other lapses and irregularities, including tbe registration of 246,465 dead voters. The audit shows that up to 2 million voters on the 2022 voters’ register may not qualify to vote either because they have invalid IDs or because their details do not match existing records. Nearly 5,000 voters have registered more than once using either their Kenyan IDs or passports. These are astoundingly large numbers that could be subject to manipulation and vote rigging in an electoral contest where there is no overwhelming support for just one candidate.  Even more alarming is the revelation that there are 14 “ghost” IEBC officials who are not returning officers but who have the authority to transfer, delete, truncate or update the voters’ register. One of these mysterious officials has super access to the register and can change it at will.

As various reports emerge of strange goings-on at the commission, including the mysterious arrival in the country of Venezuelans carrying IEBC materials, hopes of a free and fair election are fading fast. The loud and boisterous defence of the IEBC and its commissioners by the leading presidential candidate William Ruto despite such anomalies has led many to suspect that perhaps some commissioners are partisan and might already have been compromised, or that Ruto has information that the rest of us don’t. Moreover, IEBC commissioners whose terms ended or who resigned have not been replaced, and the current chairman, Wafula Chebukati, oversaw a flawed 2017 election inundated with irregularities. Can he be trusted to not repeat the mistakes of 2017? There is also the troubling question of why the IEBC has cleared so many candidates of objectionable or dubious backgrounds. As for the technology, it has failed us twice before. Will it fail again?

The 9 August election will likely be another test for the IEBC, the judiciary and Kenya’s democracy.

Change is coming, we are told. So is freedom. Or maybe freedom is already here? Politicians from both sides of Kenya’s current divide—from both the Azimio La Umoja and Kenya Kwanza alliances—are saying this. From Raila Odinga and William Ruto (the two main presidential rivals) downwards, candidates are insistent that after the elections Kenya will be transformed by an “economic revolution”. In Mombasa, for example, two rival candidates for the governorship each speak of “revolution”, as do other candidates and activists across Kenya. Why is this happening, and what does it mean?

Change is not a new message in Kenyan politics. Since the 1990s national elections have tended to pit political change against continuity. Continuity and stability was President Daniel arap Moi’s consistent offer, change and reform was the demand of those who struggled for multi-partyism and then for the new constitution. Odinga and the opposition Orange Democratic Movement (ODM) (including Ruto) promised that “change is coming” in 2007, while President Mwai Kibaki and the Party of National Unity (PNU) said kazi iendelee (let the work continue). In 2013 and 2017, Odinga, again the principal opposition leader, was the champion of change and Uhuruto (remember that word?) were the conjoined faces of continuity.

One of the many discombobulating things about the 2022 elections is that the polarity of the change/continuity contrast was first reversed and has now been eliminated. It was reversed when Ruto, after many years of alliances with dynasties—Moi, Odinga, Kenyatta—suddenly decided that they were a bad thing after all. He built a political message around economic inequality and the need for change that proved resonant; a success that should have been unsurprising, since years of a politics focussed on political reforms have not reduced the socio-economic gulf that runs through Kenyan society. Odinga, meanwhile, found that his rapprochement with Kenyatta had given him a political opportunity, but had also turned him into the candidate of the establishment. As a result, we were treated to the curious spectacle of Odinga, Kenya’s diehard radical, giving a pledge of “administrative continuity, while Ruto, after ten years at the top of government, assumed the guise of the insurgent.

Continuity apparently has its appeal—as past Kenyan elections have shown. But at a time of rapid inflation and economic hardship, its attraction may pall. A recent South Consulting opinion poll showed that a clear majority of respondents (64 per cent) think that the country is headed in the wrong direction and that people’s main concerns are economic (54 per cent identified the ‘High cost of living’ as their major concern). In such circumstances, promising continuity seems like a risky stance.  Sincere or not, Ruto’s campaign—propelled by a cost-of-living crisis that no one quite foresaw last year—has succeeded in dragging the political focus of the campaign onto economics. That is presumably why the Azimio campaign—now energised by the presence of Martha Karua as Odinga’s running mate—has also come to emphasise change, or even “economic liberation”, in recent weeks. Now Kenyan voters face two rival coalitions and presidential candidates, each promising change—and each casting that change as primarily economic.

How plausible these promises of change might be is another matter. At the core of Ruto’s campaign is the Hustler Fund—loans to enable Kenyans to realise their role as entrepreneurs. Opinion polls show that this is a popular promise—and it is true that for many years it has been argued that lack of capital holds back Kenyan farmers and businesspeople.

The Azimio economic promise for change is more diffuse. Odinga too says that change will mean easier access to credit—specifically for women. But the emphasis in the Azimio campaign is national unity and social welfare: better health care; better access to education (or maybe even free secondary and university education), and—the most novel aspect—social protection payments to two million households.

So there are real differences to the promise of change: differences that are about national policy. In terms of political reform it is surely true that—as John Githongo has eloquently explained—these elections are not about anything. But they are, at least potentially, about something—how to make Kenya more economically inclusive, as well as more prosperous. That policy difference has gone along with a reduction in openly ethnic politicking—at least, at the national level. Superficially, campaigns look quite similar to those of recent years: from the conspicuous extravagance of helicopters and huge billboards to the distribution of money to supporters, electoral behaviour seems to have become routinized. But so far there has been far less violence and tension in most of the country than in previous elections. Brazen attempts to mobilize on ethnic lines have become less common, at least in national politics – although at a local level there are still worrying cases of incitement, and there is still ample reason for concern over the danger of violence, particularly as candidates trade accusations about plans to rig the elections.

There are, of course, some serious questions about the affordability and viability of these promises. The Hustler Fund is hardly the first scheme to provide credit—there have been many previous ones, and they all tend to fall over, simply because administering lots of small loans is quite difficult (and can be open to abuse) and default rates tend to be high. Credit, after all, is another word for debt—and not all debts get paid. While the proposed fifty-billion-shilling-Hustler Fund is supposed to be revolving, it will only revolve if people pay back their loans. The bill for “Babacare” however, would also be very high—and that’s quite apart from the cost of the fuel and food subsidies introduced just before the election.

Which of these messages will win out in the context of campaigns that are simultaneously concerned with specific regional issues—the future of the port at the Coast, the implications of Uhuruto’s former alliance in Central and Rift Valley—is difficult to say in an election that is currently too close to call.  However, both campaigns are making promises they may not be able to afford to keep and would likely find it hard to deliver. Voters seem aware of this. Years of unfulfilled manifesto pledges have created something of a credibility deficit for government:  47 per cent of people in the poll mentioned above believed that, whatever the result of elections, there would be no change in Kenya.  Political reform and devolution were not easy to deliver; greater economic equality is likely to prove even more elusive.

While the proposed fifty-billion-shilling-Hustler Fund is supposed to be revolving, it will only revolve if people pay back their loans.

The two principals currently have their eyes on 9 August. But (like politicians elsewhere in the world) they might pause to think whether undeliverable promises may end up increasing the credibility deficit even further—with the longer-term effect of encouraging popular disaffection and undermining the political gains of the last few decades.

But—questions of affordability aside—we should probably celebrate the shift to focus on economic and social issues. Inequality and exclusion are the critical issues of the day and Kenyan politicians are not alone in struggling to offer solutions—as is evident from the political woes of incumbents in many countries. Kenyan elections have a reputation for being heated, controversial and driven by ethnic politics—the classic “ethnic census” election in which communities simply line up behind their communities. This was never really true, but the salience of economic issues in 2022 may finally put that myth to bed.

As noted above, there are still parts of Kenya where ethnic politics are very apparent—and even nationally, it is still possible that a very close and disputed presidential poll will suddenly ignite tensions. Complacency would be a mistake. But this time around, a combination of coalition calculations, the importance of the economy, and the fact that voters are increasingly fed-up of voting for ethnic patrons who don’t deliver, means that ethnicity seems less prominent than it has been in the past. Kenyan voters seem rightly sceptical as to whether “change is coming” in any immediate way—but the tone of these campaigns is a positive development that demonstrates that Kenya’s electorate cannot be taken for granted, and that ethnicity does not trump all other considerations. Maybe change has come?

This election—like the previous two—seems to be missing out on a critical aspect of the constitution: the central and consequential place of parliament. Instead, the country seems to only obsess over the presidency when, in constitutional terms, parliament has more substantive and potent powers than those of the president.

Let me explain why the constitution places equal if not higher primacy in parliament than the executive.

The constitution assigns parliament three substantive powers: law making, budget allocation and oversight. This sounds largely characteristic of what most parliaments in the world do but, for a number of reasons, it is not. First, because of the emphasis our constitution places on the rule of law as a foundational principle of governance; second, because of parliament’s significant power over the national purse; and third, because parliament has a quality control function of making sure the executive is properly implementing the law and prudently utilizing public resources.

Rule of law

Let’s start with the rule of law.

Our constitution emphasizes the centrality of the rule of law in all aspects of governance. Courts have explained that the constitutional principle of the rule of law means that every government or state action and every exercise of state power must find its legitimacy in a law or rule. In fact, courts often invalidate government actions that are not anchored in a law or rule.

Yet the constitution is explicitly clear that only parliament has the power to make any provision that has the force of law except where the constitution or a law—passed by parliament—specifically allows a person or body to do so. With the exception of county assemblies, there are very few instances where the constitution has conferred upon other persons/bodies the power to make laws or rules, and in fact none have been conferred on the president or the national executive. True, parliament does regularly allow the executive to develop rules and regulations to guide the implementation of primary statutes and its administrative actions, but even then, parliament retains a significant oversight role through the Statutory Instruments Act and other oversight tools to check whether the executive gets it right.

Essentially, because everything the president and the executive does must be guided by law, a parliament that appreciates its powers will always keep a leash on the executive, but not necessarily vice versa. Not vice versa because, if parliament needs to do something that is unpopular with the president or the executive, it would simply have to pass the law enabling such action and then require the executive to implement it. Critically, parliament retains the tools to force the executive’s compliance, including the ability to remove cabinet secretaries and in the extreme, to impeach the president or the deputy president. Perhaps, the only time the president has some formal power over parliament is through assent of laws—but even then the constitution overrides that power if a president refuses to timeously assent to a law passed by parliament or where the president expresses reservations with which the parliament fails to agree.

Budget and oversight

Perhaps the most consequential new power the 2010 Constitution gave to parliament—yet the one that the 11th and 12th Parliaments were most clueless about how to utilise—is the budget making power. Most of the power regarding the budget is assigned to the national assembly and includes the power (shared with the Senate) to determine the level of allocation between the national and county governments and the power to decide how much money to allocate to each organ of the national government and the state. Essentially, because money shapes a government’s priorities, parliament has significant sway—utilizing its formal and informal power—over what the president and the executive ought to focus on.

Essentially, because money shapes a government’s priorities, parliament has significant sway over what the president and the executive ought to focus on.

Moreover, after making the laws and allocating the money, parliament is accorded the oversight power which, properly utilized, means following up (mostly with the executive) to ensure proper implementation of the laws it has passed and the money it has allocated. Again, where the executive strays, parliament is accorded the tools to force the executive back into the straight and narrow.

The constitution added another critical element to parliament’s oversight powers—that of scrutinizing and approving most of the consequential appointments of a president, including cabinet and principal secretaries, ambassadors, etc. In fact, a creative and robust parliament would understand that the power to oversight appointments by the executive is elastic and, properly leaned on, could even be used to determine the fate of appointees and public servants of relative low rank within government.

But not a rogue parliament

This all not to say that parliament can ride roughshod over the executive by being either arbitrary, petty, retaliatory or punitive in how it exercises its law-making, money allocation and oversight powers. Far from it. Parliament still has to be guided by the constitution and its actions are open to challenge by the courts and then to objective audit regarding their constitutionality and legality. Still, the immense powers assigned to parliament mean that a suave parliament, operating optimally, likely has the upper hand over all the organs of state (the presidency included) in determining governance priorities.

I recognize that my arguments on parliament’s powers vis à vis those of president may be somewhat acontextual because they fail to acknowledge the complex nature of how the corporate entity that is parliament functions, and the diverse interests involved, and hence the difficulty in achieving parliamentary coherence. Still, those who have closely observed parliamentary design similar to ours in parliaments that are functionally efficient know that the design provides significant powers to individual members as well as to the corporate entity. In such parliaments, when individual members—and especially the head of parliament—understand and fully exercise their power, the potency of the law-making organ is mostly incomparable to that of the executive.

And yes, that nuanced context requires greater acknowledgement and consideration. However, my overall argument remains valid because it is validated by, and anchored in, our constitutional design.

Re-focus on members of parliament

Therefore, even as we become euphoric about presidential choices, we must appreciate where the true and most consequential constitutional power lies: in parliament. In the past, most of those we have chosen as MPs have been quislings or outright charlatans. They either are too clueless to understand the constitutional powers of their office or are so insatiably and gluttonously transactional that all they care about is using their office for self-aggrandisement. Or both. In fact most are both. Because of their nature and their small-mindedness, they fail to see the big picture—the immense power the constitution has conferred on the state entity to which they belong.

In the past, most of those we have chosen as MPs have been quislings or outright charlatans.

So, on August 9th, the decision of who we send to parliament will be just as important—if not more important—than who we vote for to become president.

And still while at it—if you have to advice the runner up, tell them to avoid entertaining emetic thoughts about a possible handshake and instead seek to become speaker of the National Assembly. Much like the position of governor in 2013, it will initially look small, but if he appreciates the magnitude of the power of that office and aligns his ambition with the dictates of the constitution, it might become the most consequential and the most sought after office in the future.