(22 October 2017, African Electoral Observation Group)

Main message
Three days before the repeat presidential election, the group argues that holding the vote on 26 October is the minimum Kenya must deliver. The Supreme Court annulled the August presidential result on 1 September 2017, and the constitution requires a fresh election within 60 days, so a failure to vote would risk a constitutional crisis. The group says the IEBC remains intact and capable of running a free, fair and credible election, and that politicians should not be allowed to profit from obstruction.

Key points

• The group’s own monitoring: It has 489 long-term observers and a team dedicated to the IEBC. It finds the commission has come under heavy attack in the previous 60 days and calls that largely politically driven.
• IEBC under pressure: One commissioner had resigned and was criticising the commission from abroad, and the chief executive was on leave. The chairperson, Wafula Chebukati, voiced concern but said the commission could deliver. The report says the IEBC should not be punished for politicians’ actions.
• Threats from politicians: It reports attacks on logistics and personnel preparations in Kisumu, Siaya, Homa Bay and Migori, with mobs disrupting training of election officials. Preparations were going smoothly in the other 44 counties.
• Boycott risk: A boycott without violence could let a losing candidate claim a “negative victory” if turnout among the 19 million registered voters is low, and the results could be contested on turnout alone.
• Election law amendments: The group describes the opposition’s objections to changes affecting the IEBC’s chairperson, quorum and results transmission, and its fears of rule changes made just before the vote.
• Violence on the day: NASA had promised a mass protest on election day, and earlier protests had caused deaths and damage. Police were blamed for excessive force.
• What an election is: It sets out the constitutional definition of a presidential election (Article 138), including the powers of presiding officers to adjourn or postpone polling in affected areas.

IEBC preparations covered

• Training of all 290 returning officers and their deputies at one venue.
• Reconfiguring the KIEMS kits to send both text results and scanned images of the results form.
• Gazetting the backup transmission procedure for areas without network coverage.
• Cutting low-network polling stations from 11,155 to about 4,500 using extra SIM cards.
• Projectors at each constituency so results are entered in public view.
• Access for media and observers, plus ICT agents at all constituencies.

Recommendations and call for action

• All complaints about the process should go to the Supreme Court, before or after the vote. Only a court can judge the election, and only after it has been held.
• Kenya should stand by constitutionalism, the rule of law and the integrity of its institutions.
• The international community, other observer groups, human rights bodies and Kenyans should be vigilant. The right to vote and the right to boycott must both be protected, and neither group should obstruct the other.
• The report also covers the dispute over international mediation and a possible coalition government, including the president’s and deputy president’s warnings against foreign interference.