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The Pollsters Have Had Their Say, Now Let the Real Voters Have Their Way
26 min read.This is the fifth in a series of articles that will review and comment on surveys related to the August 2022 general election, providing analytical tools to enable the reader to assess their credibility and potential impact.

Now that the election is upon us, this, my 5th piece for The Elephant, will compare the final round of pre-election survey results released last week—by law no new opinion poll can be published within 5 days to the election—and consider several other issues related to them, individually and collectively. It will then consider the findings of several dubious survey entities; some examples of weak and incorrect interpretation of poll results by the media; aspects of the Act regulating the publication of polls during the pre-election period; a consideration of several factors related to recent change of presidential voting intentions; and the assumed “bandwagon” effect as a consequence of polls.
To provide some empirical and analytical context, it begins with my (slightly updated) piece that appeared in the Standard of 3 August.
The undecideds: the overall picture
By all accounts, the forthcoming presidential election is likely to be a close contest. Two factors underlie this assessment: first, not all of the mainstream survey firms agree in giving Raila Odinga a clear lead over William Ruto (beyond their respective margins of error), even if three do so (Infotrak, TIFA and Ipsos—in contrast to Radio Africa). Secondly, those respondents declining to identify their voting intentions either because they declared they were “undecided” or have chosen to remain silent altogether, remain a significant proportion of potential voters in the findings of nearly all the four surveys: between 4 and 8 per cent. In other words, it can be assumed that it is they who will decide who the next president is, whether they turn out to vote, or stay away, thereby leaving this decision to those who do vote.
Such figures raise two questions: which of these two candidates will obtain the most votes, and will either also obtain the 50 per cent + 1 required for an outright win?
As shown in TIFA’s poll conducted during 21 June-16 July, both candidates increased their overall rating by about 5 per cent (Ruto from 39 to 44 per cent, and Odinga from 42 to 47 per cent). Two factors account for this: a decline in those claiming to be undecided (from 10 to 4 per cent) as well as those who gave no response (from 4 to 2 per cent). Combined with a drop by half in expressed voting intentions for George Wajackoyah (also from 4 to 2 per cent), this explains where the combined gain of 10 per cent for the two main candidates came from.
The remaining proportion who declined to declare their voting intention will be critical. Is there anything about their identity and attitudes also captured in this survey that might indicate which way they will go?
This analysis—based on previously unreleased TIFA survey data from the above-mentioned survey purchased by the Standard—explores two key questions related to the above: just who are these respondents, and does their identification give any clue as to whether and how they will vote? How many Kenyans have changed their voting intentions since the beginning of this year, and for those who have, why have they done so?
Getting inside the numbers
The first point to make is that the proportion of respondents declining to name a preferred presidential candidate has continued to decrease since the beginning of the year. For example, according to TIFA, it dropped by about half, from 30 per cent in January to just 14 per cent in late June. This stands in contrast to the relevant figures for the same period prior to the last three elections: in 2007, 1 per cent; in 2013, 5 per cent; and in 2017, 9 per cent. (It should be noted that the surveys which yielded these figures from the three previous elections were all conducted face-to-face at respondents’ households, unlike the three at issue here. It may be the case that in the former setting, where interviewers and respondents are able to establish a more “personal” relationship, it would be more “awkward” for a respondent to avoid answering this question.)
As noted, the TIFA figure is 5.2 per cent (among all respondents who said they are registered voters, but excluding those who said that they will “definitely not vote just 2 per cent). Yet with only two weeks remaining when this survey was conducted, it cannot be assumed that all such respondents have not, in fact, made up their minds; they may just be too shy to reveal their voting intentions, for one reason or another.
How many Kenyans have changed their voting intentions since the beginning of this year, and for those who have, why have they done so?
One way to test this assumption is to pose this question: what proportion of these respondents who claim to be undecided about their presidential vote have, in fact, made up their minds about the other choices they will confront on their ballot papers?
To answer it, TIFA asked all “undecideds” (on their presidential choice) if they have decided who will receive their votes for governor, senator and MP. Altogether, more than half (58 per cent) reported that they had yet to make up their minds on any of these choices. By contrast, just over one quarter (28 per cent) indicated that they had indeed made up their minds about all three.
It thus appears that these latter respondents—those who had made up their minds on the lower races—very likely decided, for whatever reason, not to reveal their presidential preference although they actually have one. By contrast, it may be assumed that the others are being honest, since if they have yet to decide their vote-choice for any of the other positions, their attention to the campaigns—and perhaps to the election itself—is obviously low (even if they are classified as “potential voters”, that is, those who claimed to be registered but excluding those who said that they “definitely will not vote).
Main reason(s) for being undecided
Another clue about the “real” position of these self-professed undecided voters is provided by the distribution of responses to the next question that all of these respondents were asked: “What is the main thing that will help you decide which presidential candidate you will vote for?” Whereas a substantial proportion (28 per cent) identified “more information about the policies/the manifestos of the candidates” as the main factor that would allow them to decide, more than twice as many (61 per cent) said that they are “not sure” what would help them make this decision. A handful mentioned either “guidance/advice from family, friends or respected local leaders” or “instructions/advice from local candidates/politicians”. At this late stage of the electoral cycle, how anyone could not be certain what they need to know—or whose opinion they need to hear—in order to make this important decision seems improbable, suggesting that this vague response is nothing more than a ruse.
Political party self-identification
Another “window” into the minds (or at least the political profiles) of the “undecideds” is gained by getting the answer to another question: what proportion of them do/do not self-identify with any political party? The assumption here is that far more of those who do may be expected to have made up their mind about their presidential voting intentions, even though, as noted above, they may be shy about revealing this.
The data here indicate that this is indeed the case, with over 90 per cent of those who self-identify with any political party also naming a presidential candidate, as compared to slightly over half of those who do not. Thus, once again, the latter exhibit a much lower level of electoral interest.
At the same time, these “undecideds” regarding the presidential contest, but who do, nevertheless, self-identify with a party are nearly evenly split: 3 per cent doing so with ODM and 2 per cent with UDA, and 1 per cent each with regard to the two corresponding coalitions.
Indeed, only with the benefit of credible official results will it be known if at least some of those declining to reveal their voting intentions have actually concealed them—as happened with significant proportions of respondents in US surveys that were “wrong” with regard to Donald Trump’s victory in the 2016 election and in the UK’s “Brexit” vote the same year. Assuming that is the case, who between Ruto and Odinga will benefit most when the real votes are counted?
Confidence in election integrity
Another factor evidently affecting the naming of a preferred presidential candidate can be put in the form of another question: does confidence in election integrity influence the willingness or propensity to name a preferred presidential candidate? According to the data, only very marginally so. Two sets of figures may be cited. First, slightly more of those who did not name a candidate believe that false election results (for whatever positions) are either “very likely” or “somewhat likely” after the 9 August votes are counted: 56 per cent vs. 52 per cent. Conversely, rather more of those who named a candidate are “quite certain” that this will not happen as compared with those without a (stated) preferred presidential candidate: 40 per cent vs. 32 per cent. (More of the latter are also “not sure” if any election “wins” will be stolen or not: 12 per cent vs. 8 per cent.)
Two demographic variables: education and English language competency
The impact of education on the inclination or ability to make a decision about one’s presidential vote is significant. For example, among those who mention an intention to vote for any candidate, only 26 per cent have not gone beyond primary school, whereas more than double this figure (i.e., 56 per cent) who do not mention any candidate are within this lower education bracket. And regarding language ability, only 33 per cent of those did not name a candidate say they can speak English, as compared with 57 per cent of those who did (clearly largely a correlate of one’s education level). Taken together, such contrasts related to these two variables suggest that at least part of the failure to name a candidate appears to be insufficient access to political information as opposed to a propensity to conceal one’s intentions.
Flip-side: who has changed their presidential preference, and why?
To probe deeper into the process of deciding whom to vote for (which can be mainly either an individual or collective/communal one, although these two factors vary across the country both between and within various communities), TIFA sought to discover just how many people have recently changed their voting intentions since the beginning of the year. Such changes are of three types: from being undecided to supporting a particular candidate; from supporting a particular candidate to being undecided; and to changing support from one candidate to another. Even without data, some of the most salient reasons can be suggested: because the candidate dropped out of the race; because one’s most admired or local political/community leader moved into or out of a relationship with one or the other presidential campaign team or alliance; because of campaign or other messaging; or because of the candidates’ choices of running-mates.
In this endeavour, the first requirement was to determine how many people say that they have done this, and who they are, especially in partisan-political terms.
Altogether, a substantial minority—13 per cent—report having done so. Significantly, a clear majority of these—57 per cent—say that they have changed from one candidate to another, as shown in the following chart:
Moreover, slightly more of those now supporting Odinga than Ruto (a 5 per cent margin) are among these 57 per cent. However, the DP has the “upper hand” in terms of winning over those who had initially been undecided (by a 12 per cent margin). Finally, among those who had previously intended to vote for one presidential candidate but are now preparing to vote for another one or are now undecided (the latter, as noted above, just 5 per cent of the total sample), Raila and Ruto have “lost” a nearly equal number of potential voters (36 per cent and 33 per cent, respectively). Nearly all of the remainder (that is, among those who have “switched” to a new candidate) previously supported someone who never entered or who dropped out of the race (especially Musalia Mudavadi or Kalonzo Musyoka).
Indeed, only with the benefit of credible official results will it be known if at least some of those declining to reveal their voting intentions have actually concealed them.
In partisan terms, an equal (and relatively small) proportion of declared supporters of ODM and UDA (led by Odinga and Ruto respectively) report having changed their presidential voting intentions since the start of the year (11 per cent). However, far more of those who continue to self-identify with Jubilee have done so (26 per cent), and almost as many among those who support any of the numerous other parties (22 per cent), the take-away being that those attached to a party lacking a presidential candidate have been rather more inclined to “move” in one direction or another in terms of their ultimate presidential choice.
But to what do the respondents attribute their changes in voting-intentions? For most (42 per cent), it has been campaign promises and manifesto content, although “the influence of others” and “the choice of running mate” also register significant numbers (13 per cent and 10 per cent, respectively). Less impactful among this group as a whole was the failure of an admired leader to join (or withdraw from) the presidential race (e.g., Mudavadi, Kalonzo, and a few others, at 8 per cent) as well as an evaluation of opinion polls (4 per cent, with Odinga having a definite advantage here, however small the total figure).
Poleni kwa the ‘Undecideds’: What this contest is really about
Even if this is Ruto’s first attempt at the presidency, the considerable duration of his public career even before his decade-long service as deputy president, means that neither of the two main candidates suffers from any “public profile” deficit. Yet one factor contributing to the higher than usual proportion who have chosen to remain “undecided” in recent surveys may be a higher level of confusion as to what agendas they both represent as compared with those who sought the country’s highest office previously. Such “confusion” may stem from the fact that Odinga and Ruto have largely exchanged their political “clothing”, with the deputy president largely campaigning against his president—and thus the status quo, even if throughout their first term they appeared to be in comfortable lock-step with each other—while the former prime minister usually defends him, even as he, too, tries to offer credible change for an electorate the vast majority of which is currently suffering a plethora of economic, and other, woes. Indeed, in a TIFA survey of June 2021, 50 per cent more respondents identified Ruto rather than Odinga as “the political leader most active in terms of criticizing the Jubilee government and trying to hold it to account”, and in TIFA’s April 2022 survey, some three-quarters of respondents identified Odinga as “Uhuru’s preferred successor”. Such a situation makes it largely impossible for Odinga to assume the anti-government posture he has in the last five elections, notwithstanding his short-lived absorption into Moi’s KANU government and party in 2001.
Finally, in more systemic terms, is the fact that Kenya lacks political parties that exist from one election to the next to which are attached contrasting policies relating to issues that matter to voters and that are fairly consistent over time. In “advanced” countries, such parties are often organized around policies related to such issues as taxation and its application to inequality, or the level of government penetration into private lives. In Kenya, though, the “choice” of candidates, even when belonging to different parties, tends to fall back onto perceptions of their personalities and identities (including but not limited to their ethnic groups), as well as onto voters’ feelings about the status quo and the conviction (or hope!) that one or the other candidate will do more to change things for the better.
The impact of education on the inclination or ability to make a decision about one’s presidential vote is significant.
At the same time (and as is often the case in “established” democracies), some voters will seek to “punish” incumbents as a way of expressing their unhappiness with the status quo, rather than expressing confidence in any particular set of would-be leaders.
Given the above, with less than an entirely clear picture as to just “what” either William Ruto or Raila Odinga represents in terms of what Kenya would be like after five years of having either of them at State House, it seems of little surprise that the “undecideds”—and those who admit to having changed their voting intentions within just the last seven months—are as numerous as the research has revealed.
But with only a few hours remaining until “judgment day”, the “mystery” of just how they will use their votes will soon be resolved, with this group of voters very likely to make the difference—assuming they actually get to their polling stations on 9 August. For as has been pointed out, try as they might, they will not find “undecided” as a vote option in the list of presidential options, nor in those for any of the other five offices to be filled.
Let us now consider some additional issues.
Five + two poll comparison: Third horse exit and some integrity questions
To no surprise, there has been a flurry of surveys conducted and released in the last several weeks, with two firms—TIFA and Infotrak—doing this twice during this period, as shown in this table:
Firms | Sample Size: Margin of Error | Survey Dates/ Method | Ruto | Odinga | Wajackoyah/ Waihiga | Undecided/
NR |
TIFA | 2,056: +/-2.2% | 21-26 July Household | 44% | 47% | 2% | 7% |
Nation (Infotrak) | 2,400: +/-2% | 30 July-1 Aug.
CATI |
41% | 49% | 2% | 7% |
Radio Africa | 3,000: +/-1.8% | 20-27 July
CATI |
45% | 44% | 2% | 9% |
Ipsos | 6,105: +/-1.8% | 23-26 July
Household |
41% | 47% | 3% | 4% |
Infotrak* | 6,000: +/-1.3% | 1-2 Aug.
CATI |
42% | 49% | 2% | 7% |
TIFA | 2,268: +/-2.1% | 31 July-1 Aug.
CATI |
41% | 49% | 2% | 8% |
5 Survey Average | ||||||
Previous | 40% | 44% | 4% | 11% | ||
Current | 42% | 48% | 2% | 7% |
*In releasing its previous Radio Africa poll a month ago, the Star announced that it would be releasing additional polls “every week between now and the election”, but only the one listed here has appeared. The fact that this poll is the only one putting Ruto ahead of Odinga in the last two months also raised questions in some quarters<
** In its report, Infotrak shows the margin of error in this survey to be only +/-1%.
Several takeaways can be drawn from this “gaggle” of surveys. First, Odinga’s margin over Ruto has increased significantly, even if the latter’s rating has also risen, both benefiting from a substantial increase of those stating they are “undecided” or simply refusing to answer the question, so that Odinga’s gain is not dependent on any Ruto loss. Second, the drop in about half of expressed support for Wajakoyah (together with the failure of Waihiga to register any significant support) means that the prospect of a second round, run-off contest, has ebbed markedly. Indeed, whereas Odinga would just barely cross the first round win-threshold according to TIFA’s late July survey with 50.2 per cent (if the 7 per cent “undecideds” and “no response” are removed), barely a week later in the most recent of all these surveys, this figure rises to 53 per cent, with Ruto at 45 per cent. (The TIFA media Release for this most recent survey of the lot was the only one which included this calculation.) Third, of the six surveys, only the Radio Africa one puts Ruto ahead, but only by 1 per cent, and thus within the survey’s margin of error; nevertheless, this still constitutes its tagging as an “outlier”. Fourth, even if CATI surveys may have a slight anti-Ruto bias (though that by Radio Africa appears to contradict this), it is clear that larger samples do not yield significantly different results, as discussed in a previous article in this series, even if larger samples allow for more “precision” at the sub-national level (as pointed out by David Ndii, see below).
‘Rogue’ or ‘fake’ pollsters
One issue that arose during a recent workshop in Naivasha on “The Media and Opinion Polls” organized by the Media Council of Kenya and that also came up at the IEBC pre-conference forum on the same subject held at KICC a few weeks later, was that of the appropriate response to the results released by “unknown”/unproven (or so-called “rogue”) pollsters. Unfortunately, no attempt was made to define what these terms mean. On occasion (and as I have mentioned in a previous Elephant piece), a pollster may appear “out of nowhere”, as was the case with the British firm, RealField, that in January released the results of a survey conducted the previous month, but has not been heard from since (even if some reports indicate it has been conducting internal polls for Azimio). Yet being a “newcomer” and thus lacking any (at least Kenyan) track-record does not necessarily mean it lacks integrity. This latter category could more genuinely include firms that release results wildly at odds with at least several other known ones with a history of fairly reliable results. At the same time, the term would more accurately apply to any firm that releases results from an actual survey that have been “doctored”, let alone those based on no survey at all. Unfortunately, for whatever reasons, the professional body to which most “reputable”/established firms belong, the Market Survey Association of Kenya—MSRA—appears to make at most minimal efforts to internally query significantly contrasting results of its members. It is thus largely left to the media to decide whether the results from any particular firm warrant publication or broadcast.
The results from two firms that raised some eyebrows after their results were released recently are the following:
Firms | Sample Size/ Margin-of-Error | Survey Dates/ Method | Ruto | Odinga | Wajackoyah/ Waihiga | Undecided/
NR |
CAP | 8,355
+/-1.5% |
21-26 July Household | 45% | 52% | 2% | 7% |
IRS | 29,857/
+/-1% |
23-28 July
SMS |
53% | 43% | 1% | 3% |
In this connection, at the second of the above workshops, I expressed my disagreement with several other panellists with regard to whether survey results from such “rogue”—or unknown/”out-of-nowhere”—pollsters should reach the public through the mainstream media, however much they deviate from those of the “mainstream” firms. Whereas others felt that they should be ignored entirely, I suggested that this was a mistake, based on faith (or hope!) that scrutiny would do more to limit their influence than silence, given the increasing use of social media to spread such “misinformation” far and wide. The key issue for me is just how they should be covered. In general, there are three options. One is neutrality, so that their results and methodological details are simply treated as “news”. Another is to interrogate them, in part by comparing them with other “mainstream” findings, so as to (indirectly but clearly) raise questions about their credibility (assuming they deviate substantially from the latter—which they invariably do). And a third option is to do this, but with an added “pinch” of interrogation (or even ridicule) about the possible motive(s) behind them, including questioning whether any interviews were actually conducted. Such questioning could be accompanied by any information gleaned from communication with those involved in such polls. A place to start with such interrogation is to (at least) report their level of compliance with the “Publication of Electoral Opinion Polls Act” of 2012. Taking these two “outsider” polls, they violate the Act in several respects.
Such “confusion” may stem from the fact that Odinga and Ruto have largely exchanged their political “clothing”.
To begin with, the media release from the Centre for African Progress included no physical address (although their company profile can be located via the Bloomberg News website). It also claims that the survey “is funded by an endowment fund that it shares with other similar entities around the world”, but the actual identity of this “fund” is not revealed. (The document also claims to be “the only researcher that correctly predicted Kenya’s polls in 2017”, which is false; Ipsos’ final 2017 survey showed Uhuru-Ruto defeated Odinga-Musyoka 52 per cent to 48 per cent.)
As for Intel Research Solutions poll, the most obvious violations are the failure to identify “the sponsor of the poll” and its address, as well as the address of the organization itself although it does have a website. (According to one journalist who attended the public release of the survey at the Panafric Hotel, when asked who paid for it, IRS’s CEO, Karen Mwangi, said that it was funded by “EU donors”, but a source at the EU subsequently assured me that the EU “had nothing to do with it.”) Further, the release is silent on “the education level of the participants” even though it is still unclear why the Act requires declaration of this specific demographic variable and not others. In addition, and while not a violation per se, a closer look at the distribution of the poll’s massive sample reveals some strange anomalies. For example, a fairly populous county such as Embu with over 309,000 registered voters had a sample of 608, while two other counties with far fewer registered voters—Taita Taveta and Isiolo, with around 156,000 and 75,000, respectively—had far more respondents (679 and 682, respectively). The heavily populated Kiambu with nearly 1.3 million voters also had only 605 respondents. Such mismatches would inevitably lead to incomparable results in terms of the margins of errors for such counties.
Whether anyone would bother to seek “legal redress” for such violations seems very unlikely, but they could (or rather, should) be included in any media coverage—having given the Management of those firms every opportunity to explain these failings, of course.
Achieving 50 per cent + 1: Misinterpreting the undecideds
One common error in media reporting of recent survey results relates to the impact of the “undecideds”. As shown above, none of the mainstream pollsters (TIFA, Radio Africa, Infotrak and “out of nowhere” —after more than three years of silence—Ipsos), show any candidate with more than the 50 per cent + 1 votes needed for a clear win on 9 August, the most recent total average (of the four firms shown above) being 48 per cent. The most visible error is to (evidently) assume that the remaining percentages for “undecided” together with “no response” won’t “vanish” when ballots are actually cast, since these two options will appear nowhere on the presidential “menu”.
For example, reporting the results of Radio Africa’s final pre-election survey in the Star at the start of last week, Bosco Marita stated that with Ruto at 45 per cent and Raila at 44 per cent, “neither of two presidential frontrunners would win on the first round on August 9”. Likewise, Infotrak’s CEO, Angela Ambitho, added some confusion when she offered that “If most of the undecided vote for Raila he would win on the first round, but realistically I do not think they will all move to one candidate.”
Yet a closer look at the Radio Africa poll reveals that such a first round win by either of the top two candidates is actually very likely. This involves first removing 270 respondents who claimed to be “undecided” from the calculation. When their numbers are then re-calculated, Ruto has 49.5 per cent, Raila has 48.4 per cent, and Wajackoyah has 2.2 per cent, and with a margin of error of +/-1.9 per cent (slightly higher than the +/-1.8 per cent reported by the Star, since the calculation is based on a smaller number of respondents who named a candidate: 2,730 rather than the total sample of 3,000). Moreover, it seems highly unlikely that among all the “undecideds” who eventually do vote, their votes would be split equally between Ruto and Raila, thus giving one or the other of them the margin of victory. As noted above, the DP, at least according to the polls, has been winning over more those who had initially been within the category.
Some voters will seek to “punish” incumbents as a way of expressing their unhappiness with the status quo.
Indeed, among the final polls released from the four (mainstream) polling agencies, only TIFA offered such a calculation (i.e., with the “undecideds” removed). It showed that while without removing the 7 per cent of those “undecided” and those who did not respond to the “no responses”, Raila, despite enjoying an 8-point lead, fails to get over the 50 per cent + 1 hurdle (48 per cent to 41 per cent); when that 7 per cent is removed, he does easily, with 53 per cent as against Ruto’s 45 per cent.
But as explained above, any effort to explore these “undecided” respondents is to question the “honesty” of at least some of them. Further, and where I do agree with Angela Ambitho, is that among those who do turn out to vote, they are unlikely to all move in the same direction, even if some of them who do may indeed deliberately spoil their presidential ballots or even leave them blank (being insufficiently enamoured of any of the four candidates and their running mates), thereby raising the percentage totals among those who do vote by reducing the “denominator” against which such calculations are made. (And recall here one of the 2013 Supreme Court judgments that “invalid votes” must be excluded from the total number used for such calculations.)
Media coverage and the act
Another aspect of polling during this electoral cycle has been the impact of the Publication of Electoral Opinion Polls Act (2012). As noted above, several firms have released survey results during this twelve-month period prior to an election during which the Act applies, apparently without any criminal repercussions. (Conviction under the Act invites punishment of about to Sh1 million and one year in prison.) The most relevant part of the Act for this discussion is the ban it imposes on the publication of any election-related results within the five-day period preceding an election, meaning that the last day for doing so was Wednesday, 3 August, although only TIFA released such results on this final day. While they were covered (with interpretation) in an article in the Standard (which included several of TIFA’s graphics) and were included in midday and evening news bulletins by (at least) KBC and NTV, no stories about them appeared in the Nation or the Star on Thursday. While it is unclear whether this was due to an interpretation (correct or otherwise) that the Act prohibits the reporting of such polls within the proscribed five-day period even if they had been released prior to it, a source at Citizen-TV informed me that, based on “legal advice”, such content could not be included in their Sunday evening news “State of the Race” segment which hitherto had provided details of all polls released in the preceding week. Presumably, such caution is based on an assumption that at least some viewers (however few in number) would be learning of such results for the first time, even if they had been in the public domain earlier. On other hand, political editors at NTV and the Standard indicated that their “legal advice” was of a contrary nature, evidently based on an interpretation that the law applies only to a poll’s initial release. Whether such differences of interpretation will eventually invite an effort to clarify the Act remains to be seen.
The importance of the election by elective office
Another finding relevant to voters’ choice as they enter their polling stations was obtained in TIFA’s final (CATI) pre-election survey. The question (apparently never previously included in any Kenyan survey) asked respondents to identify, among the six positions to be filled on 9 August, which one they consider the “most” and “least” important. Given the media’s overwhelming attention on the presidential race, it came as a surprise that more respondents did not attribute more importance to it. As shown, it is in a statistical tie with the position of governor, and nearly twice as many respondents ranked their vote for MCA as “most important” as did those who indicated the same for their MP.
While such ratings may support the argument that devolution has at least partly diluted the “do or die” competition for the presidency, they certainly raise the question as to how much these non-presidential races affect the motivation to vote altogether.
A Pre-post-mortem on the polls: Shoddy sampling, late-hour “bandwagons”, and other factors
One question asked increasingly as election day approaches is: “How will you pollsters defend yourselves if the actual (presidential) results prove you wrong?”
To begin with, it is important to correct Steve Otieno writing in last Wednesday’s Nation, when he began by asserting “The pollsters largely got it wrong in the past two elections when they showed ODM leader Raila Odinga in the lead only for President Kenyatta to be declared winner.” In the final pre-election survey released by Ipsos (where I was then working), Kenyatta led Odinga 52 per cent to 48 per cent. So even if the official result was 54 per cent to 45 per cent, the Ipsos results were certainly not “all wrong”. He also states that “a similar event happened in 2013”, when “in none of the polls did Mr Kenyatta’s popularity cross Mr Odinga’s even though both of them never passed the 50 per cent hallmark”. In fact, the final Ipsos poll had UhuRuto at 44.8 per cent and Odinga/Kalonzo at 44.4 per cent. True, it showed that neither could reach 50 per cent, but it should be recalled that some 800 pages of ODM’s evidence meant to accompany its Supreme Court petition-challenge were excluded due to “late filing”. Moreover, a national exit poll (implemented by a group of Kenyan and expatriate academics and published the following year) confirmed the findings of Ipsos: that neither had reached 50 per cent. So perhaps Otieno should do more fact-checking before trashing pollsters.
Whatever the case, can pollsters sometimes “get it wrong”? Of course, such an argument would first have to precisely define what “wrong” means. Specifically, is it mainly a question of who is announced as the winner, or how great the margin between the polls and the official numbers (assuming they are credible) is regardless of who wins?
In a TV discussion about the accuracy of such polls last week, David Ndii argued that a key weakness in the work of most Kenyan pollsters is sampling, even if it is based on IEBC’s distribution of registered voters, since it does not sufficiently match (the eventual) voter turnout, which is certain to vary across the country. This is a valid argument, although he would have to agree that given the absence of a (main) Kikuyu presidential candidate, and the presence of members of this community as running mates, previous turnout variations may not be a very precise guide for this election. So just which turnout projections should be used?
Whether anyone would bother to seek “legal redress” for such violations seems very unlikely.
At the same time, it is strange that Ndii appeared so uncomfortable with these polls showing Odinga leading, since he also claimed that “our internal polls show the opposite”. Unless he, too, believes in this “bandwagon” effect, it seems such “incorrect” polls would help Kenya Kwanza win by giving Azimio a false sense of confidence which would likely lead to reduced voter turnout among Azimio supporters, either because of “laziness” in mobilizing pro-Azimio voters on 9 August, or insufficient motivation among such voters due to overconfidence (both of which determined the result in the Msambweni by-election, as recalled below).
(One frustrating aspect of the entire discussion was that at no point was any attention given to the challenges the media sometimes faces in interpreting survey results, and even deciding whether to publish/broadcast them, as indicated above. Nor was the question raised at to the contribution, or otherwise, of these polls to Kenya’s democracy, whether they be internal/confidential ones conducted and analysed by campaign teams or those made public so as to allow voters to make more realistic choices, or be influenced by them.)
Another potential factor—that everyone says they hope will not occur—is “flawed” results, although in order for it to be taken into account in explaining a significant variance from the polls, it would be necessary to verify that such “rigging” did indeed take place and at what magnitude—not an easy task.
Still another would be any significant movement in voting intentions between the final polls and election day. While it is generally agreed that nearly all voters have usually made up their minds by this time, last-minute “waves” can occur, nonetheless. For example, Peter Kagwanja, speaking on another TV panel show a few days ago, said that Odinga’s “numbers” in Mt. Kenya will increase dramatically in the final days, since “what matters most to our people, especially in this situation where we don’t have our own presidential candidate, is to be with the winner so that we will be as close as possible to Government”. (This also constitutes an interesting hypothesis that once elected, whoever controls the Executive branch will pay more attention to the needs of those areas/communities that voted for the winning pair than to those of other parts of the country.) In this regard, he noted that nearly all recent (credible) polls showed Odinga-Karua opening up a greater gap between them and Ruto-Gachagua, so that this “bandwagon” effect is bound to materialize, thus making even such final polls look inaccurate.
One recent survey finding by TIFA (in its late July household survey, and published exclusively in the Standard) is that a significant proportion of respondents (13 per cent, as noted, all claiming to be registered voters) reported that they had changed their voting intentions since the start of the year. The following chart shows how these respondents changed.
Taking just those who moved from being “undecided” to supporting any candidate together with those who changed from one candidate to another (but excluding those who changed from supporting any candidate to being “undecided” now) —who comprise two-thirds of all those who reported some voting intention changes—just a handful (4 per cent) said they did so due to opinion polls, as compared with nearly half who cited policy-promises/manifesto content and another quarter who mentioned either “influence of other people” or “choice of running mate”:
True, among this “handful”, near twice as many say they now intend to vote for Odinga than for Ruto, but this is hardly a sufficient number to talk about any significant “bandwagon” effect, at least from polls.
Yet a closer look at the Radio Africa poll reveals that such a first round win by either of the top two candidates is actually very likely.
Still, the belief in this effect is clearly very widespread. Ever since the Deputy President was overtaken in most of the polls by the former Prime Minister, he and his associates have bashed them, often by alleging they were part of the “System’s” efforts to ensure an Odinga win. For his part, Senator Kipchumba Murkomen asserted in a recent TV discussion that “Odinga was leading in an Ipsos poll just a few months before the 2017 election, yet he lost”, although a review of the record reveals that at no time before that election did any Ipsos survey report any such thing. Whether Murkomen’s statement was deliberate or a consequence of a faulty memory is unclear, but the point is that polls—especially those from the more “established” firms that show one’s preferred candidate trailing, invariably cause discomfort. On the opposite side, Karanja Kibicho, CS for Internal Security, was shown in a 2 June news broadcast saying that Azimio had the support of 60 per cent of Kenyans, according to an unnamed survey, although Ruto was then shown refuting this, claiming that he still has personal access to such National Intelligence data, which showed that he was leading “by 8 per cent”. He also dismissed other unnamed polls not showing him in the lead as falsified.
(It is also said that Kenya Kwanza/UDA had been conducting its own surveys, under the “expert guidance” of the former Energy CS, Davis Chirchir. However, some time ago, a UDA candidate approached TIFA to ask for a quote for a survey in his constituency, although he subsequently reported that he was told “not engage any local firms”, but was not given any alternative.)
At the same time, I received an e-mail message from a UDA stalwart a few weeks ago asking for my opinion about survey results that had just been released by one of these “non-mainstream” survey firms showing the Deputy President with a comfortable lead, as she wanted to know whether I consider their work reliable. When I told her I did not, and gave my reasons, she replied,
“I suspected as much; it seemed that they are just a random pollster trying to make a name by saying Ruto will win. A bit opportunistic. And none of the main media houses carried it, so I guess it flunked. These are the ones who need to be called out.”
At least in this case then, and whatever politicians say in public, there is clearly a sober need to know which poll results can be trusted, at least in terms of not being driven by any partisan or personal agenda.
However influential (or otherwise) such a “bandwagon” effect, some have argued that these polls have substantially underestimated Ruto’s eventual numbers, given the current president’s overt opposition to his ambitions. That is, they say that a significant number of survey respondents will be too “shy” to reveal their intentions to vote for the de facto “opposition”, by saying either that they are “undecided”, or even that they will vote for Odinga. This argument is somewhat similar to that offered by many analysts in the US as to why Donald Trump’s numbers were higher than what he received from pollsters in both of the last two elections, but especially in 2016. But in this case, it seems the main weakness was that too few of his voters were interviewed in the first place, since Trump himself had frequently trashed them, as well as the motives of those conducting them. In addition, post-2016 research revealed that a significant proportion of women who were interviewed live (in phone calls) were reluctant to reveal their pro-Trump intentions due to his history of sexual molestation and rhetoric, whereas in automated (non-live) survey calls, more women with the same demographic profile named Trump as the recipient of their forthcoming votes. Since all polls in Kenya are conducted “live” by phone or in person (aside from a few SMS polls that have their own problems), whether this kind of reluctance to reveal one’s choice (generally known as “the Bradley effect”) will be evident when the official results can be compared with those of the final polls remains to be seen, but a surprise Ruto win—perhaps at least in part based on a further move of a majority of the “undecideds” in his direction (and shown above)—would certainly invite scrutiny of this nature.
The Proof of the pudding: Voter turnout, last minute surprises, and election integrity
However, the most widely recognized and probable cause for such contrasts between final polls and the official results is voter turnout. As suggested above, making any such predictions based on past elections is challenging. However, it seems that turnout in Kenya is based on a combination of individual motivation and community (and/or political party/campaign team) mobilization. The latter factor raises the question as to which side will be more successful in doing so. Here, as discussed in my third piece for The Elephant, two surveys conducted in Msambweni before the December 2020 parliamentary by-election there (by Radio Africa and TIFA) both found the ODM candidate, Omar Boga, leading the independent (but UDA-backed) candidate, Feisal Bader, by around 20 per cent, yet he lost by nearly that much. With only 40 per cent turnout, it was clear that the Bader campaign was far more effective in getting his supporters to the polls. With turnout in Kenya’s general elections usually above 70 per cent (although the exact figure has varied considerably), such a dramatic “turnout advantage” is far less likely, but given the high numbers of registered voters in certain areas—starting, perhaps, around Mt. Kenya with some 5 million out of a national total of 22.1 million—this factor could well compensate for the current Odinga-Ruto margin, especially if combined with some level of reticence on the part of the latter’s supporters to reveal their voting intentions, as noted above.
Any effort to explore these “undecided” respondents is to question the “honesty” of at least some of them.
One additional factor that could “pollute” analyses that compare these final pre-election polls with the official results is the anticipated judgment on Monday—just a day before the election – that will determine whether the case filed by “a group of activists” at the Constitutional and Human Rights Division of the High Court a week ago seeking to prevent Rigathi Gachagua, Johnson Sakaja and twelve others from being sworn in should they win their respective contests (excluding out-going Governor Okoth Obado) on the grounds that they are facing criminal investigation for various forms of corruption, with reference to the integrity provisions of Chapter Six of the Constitution. Assuming the case is allowed to proceed, it is not possible to predict—or perhaps even gauge after the affect—its impact on the presidential outcome, but it seems inevitable that it would have some.
Finally, with specific regard to individual motivation, it might be asked: will Ruto gain more from the distress so many Kenyans have felt about current economic conditions for most of which the Kenya Kwanza “brigade” blame the Uhuru-Raila “handshake”, combined with a determination to “punish” the president for opposing his deputy, without whose assistance as a running-mate he probably could never have ascended to power? Or will Raila gain more from a combination of a “bandwagon” effect, combined with an admiration of his past struggles and suffering for the sake of better “governance”, with such credentials evidently buttressed by the choice of Karua as his would-be deputy?
The actual results of the election cannot themselves answer such questions fully, but together with sufficient post-election research of both a qualitative and quantitative nature—all elements of psephology (the study of elections) —they should provide an understanding of their salience and interaction than we have now, but again, depending upon whether the official results are without any (verifiable) credibility deficit, a scenario that both sides in this contest have vociferously championed.
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Op-Eds
Role of IEBC Chair and Commissioners: What Is in the Name “Returning Officer”?
At the core of the latest IEBC controversy is the question of whether or not commissioners have a role to play in counting, tallying, verifying, and announcing the presidential results. Public opinion is divided but what many pundits have ignored is the role and structure of the IEBC.

The Independent Electoral and Boundaries Commission (IEBC) sent shock waves across the country when different commissioners gave inconsistent positions on the credibility of the recent presidential election. Kenya is no stranger to public drama by IEBC Commissioners. In 2017, an IEBC Commissioner resigned ahead of a re-run of the presidential election and fled to the US. Then followed the resignation of three commissioners alleging the improper removal of the CEO and claiming lack of faith in the IEBC chairperson’s leadership.
Once again, and just as the IEBC chairperson was announcing the presidential election on 15 August 2022, four commissioners rushed to Serena Hotel to issue a presser disowning the results for what they termed as the “opaque” manner in which the results have been handled. Counteraccusations ensued, with the IEBC chairperson accusing the commissioners of attempting to “moderate results”, an allegation that they vehemently opposed. At the core of this IEBC circus is whether commissioners have a role to play in counting, tallying, verifying, and announcing the presidential results. Public opinion has been divided over the role of the IEBC commissioners in the conduct of the presidential election but what many pundits have ignored is the role and structure of the IEBC, as part of the independent commissions, which might shed light on the commissioners’ role in the presidential election.
This piece argues that a holistic reading of the constitution on the conduct of the presidential election reveals that the IEBC, including the commissioners, should be involved in all stages of the election. To prove this, it makes three arguments. First, Article 138(3) (e) of the constitution enshrines the role of the IEBC as a body in the conduct of presidential elections. Second, the jurisprudence on the running of the business of the IEBC provides for the centrality of the commissioners as the “linchpin of the Commission”. Third, the architecture of the independent commissions as watchdogs of democracy ingrains internal checks and balances and disfavours limitless powers of an individual or of one arm of the commission. Lastly, the paper debunks the analogization of the role of the IEBC and chairperson and returning officers. It offers three reasons why the parallelism of the two positions commits the logical fallacy of false analogy or false equivalence.
This article proceeds on the assumption that the IEBC chairperson exercised the role of the national returning officers to the exclusion of other commissioners. It is informed by the chairperson’s statement released on 17 August 2022, where the chairperson quotes the role of returning officers as being to tally, verify, and announce results. He concludes, “The role of the National Returning Officer for Presidential Election is not shared responsibility and not subject to Plenary decision of the Commission.” The paper argues that the chairperson of the IEBC has failed to examine his role in the context of the entire constitutional provisions on the conduct of the presidential election and operations of the commission.
While the failure to involve the commissioners raises an important question, this piece observes that it is not enough to overturn the election. Beyond demonstrating the lack of participation of the commissioners, it must be shown that there is a “substantial effect” on the integrity of the election as a whole.
Role of IEBC chairperson vis-à-vis the other commissioners in the conduct of the presidential election
As in any other election, in the presidential election, under Article 86 (c) of the Constitution, the IEBC is required to ensure that the results from the polling stations are openly and accurately collated and promptly announced by the returning officer. This generic provision lays out the oversight role of the IEBC in the conduct of the election. Public discourse over the election has been engrossed in the question of the exact duty of the commissioners in the conduct of the presidential election. Some have taken their scepticism to the extent of questioning the reason for voting if the commissioners “have a say in the presidential election results”. Others have argued that the law only requires the IEBC commissioners to vote only on the business of the commission, and the presidential election is not a business of the commission.
While the arguments on the commissioners’ role and the perception of subversion of the will of the people raise an essential question, these contentions fail to address the broader context of the presidential election. The presidential election requires a heightened oversight because of its importance and critical nature in Kenyan society. This part considers the constitutional provisions which give the commissioners a general oversight role, including verification of forms 34A and 34B to determine their accuracy.
Some have taken their scepticism to the extent of questioning the reason for voting if the commissioners “have a say in the presidential election results”.
It is crucial to first clarify that this debate is not about the quorum of the IEBC. The quorum of the IEBC has been used to conflate it with the debate on the role of the commissioners in the presidential election. However, the question of the role of commissioners is distinct from the question of quorum. Quorum addresses the question of whether there are enough commissioners to transact business, an issue that was settled in the BBI case. The pertinent issue in the current discourse is the role of commissioners since they were present but did not participate for lack of a part to play in the process. For quorum to be an issue, all commissioners should have received a notice to attend the plenary, but only the minimum number availed themselves.
The structure of independent commissions as commission-centric
A holistic reading of the constitution on the nature of the independent commissions reveals the integral role that commissioners play in overseeing the implementation of a commission’s functions. In this part, I argue that most proponents of a super-chairperson of the IEBC on the national tabulations of presidential results fail to read the constitution holistically. Specifically, they fail to examine the structure and functioning of the independent commissions, including the IEBC. An isolationist and narrow reading of Article 138 (10) of the constitution on the role of the IEBC chairperson will lead to an erroneous conclusion that the IEBC chairperson collates, tallies, and verifies forms 34A and 34B received from the polling stations. This piece cautions against drawing hasty conclusions regarding the role of the IEBC chairperson from reading a single article of the constitution.
Chapter 15 of the constitution provides for the architecture of the independent commissions. Article 249 of the constitution decrees the object of these bodies as the protection of sovereignty, and promoting democracy and constitutionalism. The commission’s composition and nature are listed in Articles 250 and 253 of the constitution, and it is stated to be a corporate body. The commission as a body functions in a manner that guarantees internal accountability, as depicted by the uneven number of commissioners and the insistence that the existence of the commission depends on the existence of commissioners.
Most proponents of a super-chairperson of the IEBC on the national tabulations of presidential results fail to read the constitution holistically.
Kenyan courts have discussed the place of commissioners in relation to the secretariat. A close look at some of the foundational cases on independent commissions will shed light on the relationship between the chairperson of the IEBC and commissioners as a body. One typical running theme is that the commissioners are the linchpin of the commission, and no duty is beyond the commissioners’ oversight since they are the nub of the commission. This argument does not mean they have unfettered powers—even to the extent of changing election results—but they can oversee and note mistakes on the report to be submitted to the Chief Justice.
At the centre of their function is policymaking for implementation by the secretariat, and oversight. The rationale for the emphasis on the centrality of commissioners is that they are responsible for realizing the mandate of the IEBC as an enabler of democracy and a guarantee of the right to self-determination. The secretariat assists the commission in the discharge of its mandate. Court decisions on the relationship between the secretariat and the commissioners reveal the vital place of commissioners in discharging the commission’s mandate. In the Constitutional Application N° 2 of 2011, the court was emphatic that “the several independent Commissions and offices are intended to serve as ‘people’s watchdogs’ and perform this role effectively”.
Courts in Kenya have termed the existence of commissioners as a foundation for the powers of the secretariat. The implication is that for a commission to exist properly, it must have commissioners; from there, all other functions flow. Ordinarily, the outcome of the functioning of the secretariat should be ratified by the commissioners of the IEBC. In Michael Sistu Mwaura Kamau v Ethics and Anti-Corruption Commission and 4 others 2017, the court stated,
“The Secretary and the Secretariat can only carry out the powers vested in their offices when the Commission exercises its powers since they implement what the Commission has resolved. The Commissioners must ratify the outcome of the tasks undertaken by the Commission’s staff if they are to be deemed as the decisions of the Commission” (Emphasis mine).
Therefore, given the central position of the commissioners in the conduct of all functions of the IEBC, they cannot be excluded from an essential role in the national conduct of the presidential election. Although officers of the IEBC might have specific statutory duties, the exercise of their functions is subject to general oversight by the commissioners. Therefore, officials such as returning officers assist the commissioners in conducting the election at the lower levels. It is illogical to argue that returning officers can exclude the commissioners from oversighting the elections they are conducting.
Misuse of the tag of national returning officer
The general posture of the Kenyan constitution is that it adopts a pessimistic outlook on those who wield power. This position of the constitution informs the distribution of duties among various parts of the IEBC. Here, I will argue first that Article 138(3) (c) of the constitution provides for the general task of the IEBC as a body, the chairperson’s role being limited to the announcement of the presidential election results under Article 138 (10) of the constitution. Second, I will contend that the constitution does not eliminate the oversight role of commissioners regarding the presidential election. Third, the constitution is aversive to an individual exercising monopoly of power. Put differently, the constitution favours the distribution of powers, oversight, and internal checks and balances. Lastly, I will deflate the false analogies of equating the chairperson of the IEBC in the conduct of the presidential election with other returning officers. I will argue that it is a simplistic view of the conduct of the presidential election.
As a body the IEBC has the role of the conducting of the presidential election. Article 138 (3)(c) of the constitution provides that in the presidential election, the IEBC shall tally, verify, and declare the results after counting the votes in the polling stations. This role is given to the commission as a body to be discharged by its employees with the commissioners’ oversight. At the national level, the IEBC verifies and tabulates forms 34As and 34Bs to generate form 34C. All commissioners have a right to be involved in the tabulations in the exercise of their oversight role over the employees of the IEBC.
Although officers of the IEBC might have specific statutory duties, the exercise of their functions is subject to general oversight by the commissioners.
Unlike Article 138(3)(c), which provides for the general role of the IEBC, Article 138(10)(a) of the constitution provides that the chairperson of the IEBC shall declare the results of the presidential election. The implication of this is that the role of the chairperson is exclusive in so far as the declaration of the presidential result is concerned. The chairperson does not single-handedly oversee the secretariat in the generation of form 34C, which contains the collated presidential election results. Additionally, the commissioners have a role under Article 86 of the constitution to ensure that results are accurately collated and announced by returning officers. In this case, and for argument’s sake, even if we equate the chairperson to the returning officers who announce the results, the commissioners will have an oversight role over him on how the national total results are arrived at. This oversight will ensure that the chairperson of the IEBC is accountable to the commission in the conduct of such an important role. The Court of Appeal in Al Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy and 2 others 2017 held that the commissioners formulate strategy and oversight IEBC employees and the commission’s functions, meaning that the tabulation of results in the forms was subject to the supervision of the commissioners.
To counter the above arguments on the commissioners’ involvement, some people have argued that commissioners are not required to oversee other elections before various returning officers announce them. This argument fails to consider the unique nature of the presidential election in our constitutional design. Of course, all polls are unique, and in substance, they are supposed to adhere to the same constitutional principles. However, due to the controversies surrounding the presidential election, the constitution favours the involvement of commissioners as a collegial body to guarantee electoral integrity. Because of Kenya’s history in the presidential election, the constitution requires heightened oversight at all election levels, especially the final national tabulations.
The other counterargument offered is that the IEBC chairperson exercises the powers of a returning officer, which are individualized duties not subject to the plenary powers of the commission. To answer this claim, I make three arguments. First, the characterization of the role of the chairperson of the IEBC as a presidential returning officer does not mean that the commissioners are excluded from oversight of the national tallying of the presidential election. Put differently, the characterization should not affect examining the exact constitutional dynamics between commissioners. Thus, the commissioners have a role in oversighting the chairperson of the IEBC because he exercises the commission’s mandate.
Due to the controversies surrounding the presidential election, the constitution favours the involvement of commissioners as a collegial body to guarantee election integrity.
Secondly, while the role of the IEBC chairperson has a similarity with that of the returning officers of other elections, they are not the same. Under section 38 of the Election Act, the returning officer is responsible for conducting the election. Further, section 39(1A) of the Election Act provides that the returning officer is responsible for tallying, collating, and announcing the election results. In contrast, Article 138(3)(c) of the constitution provides that the responsibility of conducting the presidential election lies with the IEBC. While the chairperson of the IEBC exercises specific duties similar to those of IEBC returning officers, the constitution explicitly adopts the language of the IEBC as a body when addressing the specific electoral duties such as counting, verifying, and tabulating the presidential election. Contrasting Article 138(3)(c) of the constitution with Article 138(10)(a) of the constitution, which provides that the IEBC chairperson shall announce the presidential election, demonstrates that he exercises constricted powers. When it comes to the announcement of the results of the presidential election, Article 138 (10)(a) of the constitution drops the language of the commission and specifically identifies the chairperson as the individual with the role of declaring the aggregated results. Therefore, if the constitution wished the chairperson to singlehandedly exercise the role laid out in Article 138(3)(c) of the constitution, it would have included it in Article 138(10) of the constitution or in any other part that exclusively addresses the duties of the chairperson of IEBC.
Thirdly, the involvement of the chairperson of the IEBC in announcing the presidential election demonstrates a constitutional intention of engaging the highest levels of the commission in the national tabulations of results and declarations. The functions listed under Article 138 (3)(c) of the constitution, especially the national tabulation of results, involve the highest organs of the IEBC. The rationale for this involvement of the highest organs of the commission is not hard to discern, owing to the perennial controversy surrounding the presidential election in Kenya. The commissioners are selected with a unique obligation of securing democracy, and what other level epitomizes this democracy if not the presidential election? The stakes in the presidential elections are very high in Kenya, and it would be barmy not to involve the entire commission or vest the national level powers only in the chairperson of the IEBC. Granting the IEBC chairperson the exclusive role of the presidential election returning officer to the exclusion of the commissioners has no serious constitutional value. With regards to the manipulation of results, the presumption should be that the more transparency and involvement, the less likely it is for them to be changed.
Relevance of the Maina Kiai case
The import of the case of Maina Kiai on the powers of the chairperson of the IEBC has caused considerable controversy in the country. Some have argued that the Kiai case addressed the issue of whether the chairperson can change the results declared at the polling station. Others have argued that Kiai’s statement on the powers of the IEBC chairperson was an obiter dictum. This part seeks to answer these questions and make the fourth argument why the commissioners of the IEBC should have been involved in the conduct of the presidential election.
The answer to the concerns raised regarding the relevance of Kiai on the discourse on the role of commissioners is both “yes” and “no” because the case touches on the role of the chairperson of the IEBC and yet not in the manner in which the four commissioners cite it. On the one hand, the Kiai decision is relevant to the extent that it indicates the scope and nature of the role of the chairperson of the IEBC. Although not exactly dealing with the current crisis, it elucidates the role of the chairperson of the IEBC in the conduct of the presidential election. On the other hand, the Kiai decision does not address the role of the commissioners versus the chairperson of the IEBC in the conduct of the presidential election. The implication is that when the court is discussing the limitation of the powers of the chairperson of the IEBC, it is doing so in the context of whether the chair can alter the results announced at the polling level. Nevertheless, the Kiai case sheds light on the nature of the powers of the chairperson of the IEBC. From Kiai’s case, it is clear that the chairperson exercises limited powers, and the constitution disfavours the chairperson from having exclusive powers in the presidential election other than the announcement of the collated results.
The commissioners have a role in oversighting the chairperson of the IEBC because he exercises the commission’s mandate.
The constitution disrelishes the concentration of powers on one individual in the conduct of an important election such as the presidential one. This is to ensure an effective discharge of the role of the IEBC as the safeguard of democracy and the right to self-determination. The nature of the independent commissions as having embedded checks and balances was articulated by the Supreme Court in the matter of the National Land Commission (2015). The court believed that checks and balances were the mainsprings of accountability. It stated that “the spirit and vision behind the separation of powers are that there be checks and balances and that no single person or institution should have a monopoly of all powers.”
The commissioners provide a heightened level of oversight and verification, which means that the chairperson cannot act unilaterally in the tabulation of forms 34A and 34B. It is illegitimate for the chairperson to conduct the presidential election in an exclusionary way, especially the generation of form 34C without the involvement of other commissioners. This conduct goes against the rationale of the independent commissions, which is to be the people’s watchdog for democracy. The Court of Appeal captured this position in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017):
“To suggest that some law empowers the appellant’s Chairperson, as an individual, to correct, vary, confirm, alter, modify, or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres, is to donate an illegitimate power . . . We reiterate, as we conclude that there is no doubt from the architecture of the laws, we have considered that the people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual, the Chairperson of the appellant.” (Emphasis mine.)
In sum, while the Kiai case did not directly deal with the role of the commissioners and chairperson, the obiter indicates the limited powers of the IEBC chairperson. The court in Kiai’s case reinforced the need for a limited role of the chairperson of the IEBC in line with Article 138(10) (a) of the constitution. Thus, to ensure the IEBC’s accountability and checks and balances, it is constitutionally absurd to exclude commissioners from verifying the presidential election.
Failure to include the commissioners must substantially affect the election
Overturning an election should not be an easy task for any petitioner. This is because the election represents the people’s will, and the courts should be slow in overturning the people’s expressed will without clear and convincing evidence. There is also a presumption that the actions undertaken by government officials are legal unless they are impeached by evidence. The other concern is that elections are expensive, and for a developing country like Kenya, economic realities should be balanced with constitutional purity.
Globally, no election is perfect, so normal errors do not suffice to overturn an election. The core question is whether the errors or irregularities are substantial enough to overturn an election. Section 83 of the Election Act provides that non-compliance with the constitution and the law must substantially affect the election. In Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others (2017), the court held that trivial irregularities are not enough to overturn an election, and the error must have a substantial effect on the election. Further, the court noted that the election should be looked at as a whole to determine whether the constitution has been substantially breached.
The Kiai decision does not address the role of the commissioners versus the chairperson of the IEBC in the conduct of the presidential election.
The failure to involve commissioners in generating form 34C should not automatically invalidate the election. The constitution does not adopt a purist approach to the election. Instead, all mistakes must substantially affect the integrity of the election. A presidential election is a highly regulated process. If it is proved that the results in forms 34As and 34Bs were collated adequately at the national level, the non-involvement of the commissioner will not rise to the “substantial effect” level.
However, if it were to be demonstrated that the failure to include the commissioners led to unverified results, which have numerous mistakes, then the non-involvement would have substantially affected the election. The errors would not be characterized as “harmless errors” because they would have a tangible effect on the election’s credibility. The commission as a body would have failed to realize its mandate of conducting a free and fair election as enshrined in Article 86 (c) of the constitution. Thus, the commissioners’ oversight role in the conduct of the presidential election would be unconstitutionally impeded, leading to the unverifiable and inaccurate collation of results at the national level.
To conclude, a hasty and exclusive reading of Article 138(10)(a) of the constitution would lead to the erroneous conclusion that only the chairperson of the IEBC has the role of tallying, verifying, and declaring presidential results in forms 34A and 34B. However, a holistic reading of the constitution and jurisprudence on the structure and the functioning of the IEBC demonstrates that commissioners should be involved in generating forms 34C for the presidential election.
Op-Eds
Voter Apathy Among the Youth Is Not a Sign of Political Apathy
We should be careful not to equate the youth’s apathy towards mainstream political structures with a disinterest in politics and social change.

On Tuesday 9 August, Kenyans went to the polls to vote in what one columnist called “The Most Boring Election.” As the general election approached it was suggested that the youth could provide a critical swing vote in a neck and neck race between the two main presidential candidates, veteran politicians Raila Odinga and William Ruto. Seventy-five per cent of Kenyans are under the age of 35; the youth eligible to vote made up 40 per cent of the electorate.
Both candidates were not oblivious to the power of this voting bloc. For example, William Ruto made “hustling” a cornerstone of his campaign. Drawing on his experiences as a young man selling chickens, Ruto’s campaign slogan, “Every Hustle Matters”, was a direct appeal to the youth vote. Ruto buttressed his campaign slogan with a promise to create a Sh50 billion (US$417 million) credit fund for hustlers and to get rid of political dynasties like the Odinga and Kenyatta families. In opposition to Ruto’s bottom-up vision of development, Odinga attempted to capture the youth vote with the promise of a social protection programme that includes a monthly Sh6,000 ($50) basic income grant for vulnerable households and free education from pre-primary to university. Both candidates promised to put an end to corruption.
Despite these campaign promises, Kenya recorded its lowest voter turnout in 15 years. The youth, in particular, were absent from the ballot with one election observer noting “We were concerned about the low registration of younger voters. We were expecting six million new registered voters but only three million turned up.” One reason why the youth do not vote is because they are cynical about politics. Politicians are not just seen as corrupt, but institutional politics itself is seen to be corrupting. Another is that the youth, despite being the largest demographic, are underrepresented in the political landscape, causing them to disengage from democratic structures and processes (only 2 out of 349 parliamentarians are under the age of 30). Others point out that disinformation, the current cost of living crisis and a lack of technology to make voting easier further exacerbated low turnout amongst the youth. Regardless of the reasons, there seems to be a belief that Kenyan youth are apathetic towards politics. However, we should be careful not to equate apathy towards mainstream political structures with a disinterest in politics and social change.
The disenfranchised majority
The youth are a disenfranchised majority both economically and politically. Economically, the youth in Kenya struggle to access secure employment and basic necessities for everyday survival. For example, young people make up 80 per cent of the 2.3 million unemployed. When young people do manage to find work, it is often in the informal sector where the lines between “legal” and “illegal” are blurred and income is sporadic and precarious.
This economic exclusion is also intimately linked to political marginalisation. In the last three decades, rural poverty and economic hardship have driven large numbers of people to urban areas where they often end up in informal settlements. More than 60 per cent of Nairobi’s population live in informal settlements that make up just six per cent of the land – the majority of whom are under the age of 30. In these spaces, there is a lack of access to basic services and infrastructure. Moreover, the youth are often over-criminalized and subject to police brutality. A report by the Mathare Social Justice Centre documented 803 extrajudicial killings by the police between 2013 and 2016 – most of the victims were young men. Therefore, the youth often experience a form of exclusionary citizenship where their rights are regularly undermined and, as a result, there is an obvious disintegration of the social contract between the youth and the state. Against this backdrop of a lack of formal employment and limited representation in institutional politics, the youth recognise that they need to make claims to economic distributions and political power in novel ways to respond to their marginalisation.
Apathy towards the vote is not apathy towards politics
In the lead-up to the elections, the youth and community activists in Kibera and Mathare, the two largest informal settlements in Kenya, campaigned relentlessly for peace. Artists, thespians and activists held regular, lively community meetings and peace walks to encourage cohesion and solidarity within the ethnically diverse neighbourhoods. At one peace walk, young thespians belonging to the “Social Justice Travelling Theatre” performed a satirical play on the streets of Mathare. The actors, in character as politicians, made lofty promises like, “I promise to pave the road all the way to your door, to build a swimming pool in your bedroom,” eliciting much hilarity from the audience which no doubt found them quite relatable to the current moment.
When young people do manage to find work, it is often in the informal sector where the lines between “legal” and “illegal” are blurred and income is sporadic and precarious.
Other youth groups hosted football tournaments, put on choreographed dance shows or hosted gospel concerts. This is one example of how the youth engage in political acts using art, music and youth-oriented social networks rather than traditional party politics. Ariadne Vromen views this type of political participation as, “acts that can occur, either individually or collectively, that are intrinsically concerned with shaping the society that we want to live in.” Here, the groups were not envisioning change through the electoral process, but rather encouraging post-election peace by pointing out that politicians only pay attention to the youth when they need a vote. If the youth perceive politicians as using them, is the apparent “youth voter apathy” then not a radically political act?
Another example are the “hustlers” that Ruto romanticises. Hustlers are often associated with the youth living in informal settlements who have to engage in multiple forms of precarious work to make ends meet. Hustling embodies the admirable ability of the youth to shrewdly improvise in order to survive, yet it is also an act that blends political activism with everyday activities. For example, hustlers in Nairobi’s informal settlements often engage in basic service delivery like garbage disposal, provision of water and sanitation services and distribution of solar lighting – basic services that are usually under the purview of the state. Here, hustlers may not perceive themselves as practising politics, but through their provision of basic services, they question the state’s authority by appropriating its constitutional responsibilities. After all, these hustlers, through their everyday acts of survivalism, are pointing out the failure of the state to fulfil its duties by stepping in to fill the void – is that not a political act?
Hustling embodies the admirable ability of the youth to shrewdly improvise in order to survive, yet it is also an act that blends political activism with everyday activities.
Finally, this is not to say that the youth do not engage in campaigns that are more easily identified as political. Moving away from party politics, the youth are engaging with civil society and grassroots activism in droves. In Mathare, the Mathare Social Justice Centre has set up a network of over 20 smaller centres to monitor human rights abuses in the community and to protest injustices. The social justice movement also seeks to advocate for access to basic services and for ecological justice. Other organisations like the Slumdwellers Federation and Ghetto Foundation are similarly mobilising the youth for collective action campaigns and spurring civic education. There are also a plethora of youth-led development groups that advocate for women’s rights, access to healthcare and engage in environmental programmes.
Interacting with the lives of the youth, especially in low-income areas, shows that they are not apathetic to what is happening in society. On the contrary, they are politically astute and acutely aware of the inequalities that surround them. Recognising their shared marginalisation, the youth are sceptical of politicians who promise solutions to their problems and consciously choose not to interact with hegemonic political structures. Instead, they are developing new forms of politics that are intimately linked with everyday activities, kinship networks and popular culture. And while it is not clear whether these alternative forms of politics will spur meaningful change, what is clear is that the youth are not apathetic.
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Will the Supreme Court Send Kenyans Back to the Ballot?
As in 2013 and 2017, the fate of Kenya’s presidential election has been placed in the hands of the Supreme Court.

On Monday 15 August 2022, Kenya’s Independent Elections and Boundaries Commission (IEBC) Chairman, Wafula Chebukati, announced William Ruto of the Kenya Kwanza alliance as the country’s President Elect with 50.5 percent of the popular vote narrowly beating Raila Odinga of the Azimio la Umoja alliance with 48.8 percent.
As in 2013 and 2017 however, the fate of Kenya’s presidential election currently lies in the hands of the Supreme Court. This follows coordinated press statements by four Independent Elections and Boundaries Commission (IEBC) commissioners on 15 and 16 August, and by long-time opposition leader Raila Odinga on 16 August, and the submission of election petitions to the Supreme Court by Azimio and a group of Kenyan citizens on 22 August.
At the briefings on 15 and 16 August, the four commissioners stated that they could not “take ownership of the results” announced “because of the opaque nature which these results have been handled”, and because the total tally surpassed 100 per cent of the valid votes cast by 0.01 per cent even though the latter is likely due to a rounding error.
Odinga followed with a synchronised press briefing in which he argued that, because the “IEBC is structured as a democratic institution in which decisions must be taken either by consensus or by a vote of the majority . . . Chebukati’s announcement purporting to announce a winner is a nullity” and that his Azimio alliance would pursue “constitutional and lawful channels and processes to invalidate Mr Chebukati’s illegal and unconstitutional pronouncement”.
Azimio then added to these allegations in their election petition with claims that, among other things, some of the polling station-level forms (or forms 34A) were changed on the IEBC portal by hackers associated with Ruto; votes were added to the presidential vote in certain constituencies; the final results were declared without all forms 34A having been “received, uploaded and made publicly available for scrutiny”; Ruto failed to secure 50 per cent + 1 vote and so did not secure a first round victory; and the gubernatorial races in Kakamega and Mombasa were postponed with the “ulterior motive” of reducing turnout in Odinga strongholds.
It is yet to be seen whether or not the Supreme Court will view an announcement as a decision that requires consensus or a vote, and what detailed evidence Azimio will provide to support their claims of procedural problems and electoral malpractice, and how the court and Kenyans will respond.
What is clear however, is that, while Odinga and Azimio seemed to have an advantage going into the elections, the polls were incredibly close, with Ruto and Kenya Kwanza doing well at every level. Thus, while Ruto was announced president-elect with 233,211 votes more than Odinga, the Azimio petition claims that, when manual votes are included, Ruto actually secured 49.997 per cent of the popular vote. The upper and lower houses were also initially fairly evenly split. Thus, before a series of defections to Kenya Kwanza and before any electoral petitions, the Senate was initially composed of 33 Kenya Kwanza, 32 Azimio and 2 non-affiliated senators, and the National Assembly of 164 Azimio, 165 Kenya Kwanza, and 14 non-affiliated members of parliament (MPs) (with 6 seats yet to be declared) – while 21 governors were in Azimio, 22 in Kenya Kwanza, 2 independent, and 2 yet to be elected due to a mix-up with the gubernatorial ballot papers for Kakamega and Mombasa.
Odinga’s perceived advantage going into the polls stemmed from a number of factors. These included his track-record as an opposition leader of long-standing and support from the incumbent President Uhuru Kenyatta. The latter translated into a sizeable war chest and the support of various state officials. The latter included chiefs in the national administration who, from my own research in Nyanza and the Rift Valley in the months prior to the elections, were found to be more proactive at mobilising voter turnout in Odinga than in Ruto strongholds, while many openly encouraged people to vote in line with the government. Odinga also enjoyed the support of a number of vocal civil society leaders, while some of the country’s main media houses were also widely perceived to be biased towards him. In this context, it was perhaps unsurprising that opinion polls ahead of the elections showed that Odinga had the momentum behind him, and was enjoying a marginal lead.
Nevertheless, the election remained too close to call in the weeks ahead of the polls. President Kenyatta’s support for Odinga – in the context of widespread dissatisfaction with the government’s performance especially around the all-important question of the economy – failed to sway many voters including in Kenyatta’s former stronghold of central Kenya where a majority rebelled against Kenyatta and voted for Ruto. Similarly, chiefs, who are state officials with increasingly minor duties, enjoy little capacity to direct the Kenyan voter.
Indeed, Kenyatta’s backing ended up being a poisoned chalice: it made Odinga appear to many as a “project”, rendered it difficult for Azimio to develop a clear campaign message that resonated with the majority of Kenyans, and encouraged a sense of complacency amongst many in the Azimio team. As a result, Odinga lost ground to Ruto and suffered from relatively low turnout in his former strongholds – most notably in Nyanza and at the Coast – and failed to make anticipated inroads into central Kenya.
On the other hand, Ruto and Kenya Kwanza undertook an impressive campaign. Ruto started early and traversed every part of the country. He also had a clear national message – he was a “hustler” who understood the problems facing the average Kenyan and would focus on a bottom-up process of economic reform that would bring capital and jobs – and ensured that he spoke to local issues wherever he went (somehow remembering the names of local leaders and places, and local development and socio-economic concerns, during his relentless tours). Ruto also emphasised his Christianity, made controversial donations to churches, and sought to distance himself from his association with violence during the post-election crisis of 2007/8 through (among other things) his religiosity, his backing of Kenyatta in 2013 and 2017, and focus on Kenyans’ economic troubles, and made much of his youth and energy, as compared to his older competitor.
Chiefs, who are state officials with increasingly minor duties, enjoy little capacity to direct the Kenyan voter.
Ruto also oversaw a more united alliance. Thus, while interviewees spoke of divides within Azimio – particularly between Odinga’s Orange Democratic Movement (ODM) and Kenyatta’s Jubilee Party (JP) – Ruto’s United Democratic Alliance (UDA) remained dominant in Kenya Kwanza, and did a relatively good job at managing the party nominations.
As noted, we do not yet know what detailed evidence will be brought to court, whether the court will call for a fresh election, and whether Azimio would accept to go back to the polls with the current IEBC commissioners in place or call for a postponement and reforms. We also not do not know – if a fresh election were to be held – how such a competition would go. Much would depend on the evidence presented – and whether or not the general public comes to feel that the wrong person was announced the victor on 15 August – the resources that the two candidates have available, and turnout. The latter is particularly important. While the 9 August polls showed a relatively low turnout of 65 per cent, this would likely fall in any fresh election given that, as in previous elections under the 2010 Constitution, many Kenyans were likely not motivated to vote on 9 August by the presidential election, but by one of the other five elections held on the same day.
However, as things stand today, Ruto appears to be in a fairly strong position. Many Kenyans are tired of the elections and struggling economically and, if detailed evidence of electoral malpractice is not forthcoming, are likely to feel sympathetic towards the president-elect. Some who may have felt that Odinga was likely to win as the president’s favoured candidate, may feel more emboldened to vote for Ruto if the Supreme Court were to order a re-run. Finally, while Azimio and Kenya Kwanza have shared seats at various levels, it is Ruto’s UDA that has emerged from the elections as the strongest individual party with 24 senators and 17 governors as compared to ODM with 13 senators and 13 governors, which will likely help to facilitate a more intense grass-roots campaign for Ruto if a fresh presidential election does need to be held. Ruto’s position has been further strengthened by a movement of elected politicians towards Kenya Kwanza. This shift was spearheaded by 10 independent candidates who declared their backing of Kenya Kwanza on 17 August, followed by the United Democratic Movement (UDM), which moved from Azimio to Kenya Kwanza on 18 August taking with it 45 elected politicians including two governors, two senators, and 7 MPs.
As it stands, the country remains divided between supporters of Kenya Kwanza, supporters of Azimio, and those who believe that neither alliance will have much impact on their daily lives and who just want to make a living and support their families. Ultimately, it will be the latter group – and the numbers of them who can be persuaded to vote and for whom – that will determine any fresh election. Thus, while the official campaign period ended on 6 August, the informal campaigns and politics of persuasion will continue for some time to come.
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