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Saturday, April 15, 2017

Uhuru Should Stop Getting High On American Supply

Much has been made about the alleged flooding of the Kenyan coast with illegal drugs. President Uhuru Kenyatta has vowed to stop them and to prosecute all involved in the trade. But like his “war” on alcohol, his stance against illicit drugs is informed less by reasoning and evidence but rather by hysteria.

Kenya is not on the brink of a drugs epidemic. As Kalundi Serumaga puts it in an article in The Elephant’s edition on drugs, “ordinary Africans simply do not have enough numerical strength to make up the necessary aggregated monetary demand, and rich Africans are simply too few to consume the volumes necessary to make fixed supply lines to them worthwhile.”

In fact, across the world, the criminalization of drugs like heroin, cocaine and marijuana has had little to do with public health concerns. Heroin was created at the close of the 19th Century by the German company Bayer, and marketed alongside aspirin as a remedy for coughs, colds and ‘irritation’ in children. Its criminalization in the US, along with opium from which it is manufactured, grew from resentment of Chinese workers and racist hysteria over accounts of white women being lured into opium dens. Cocaine, first isolated in 1859 and marketed as remedy for toothaches in children and as an ingredient in Coca-Cola, was similarly criminalized for due to US whites’ fear of economic competition from freed slaves. The banning of marijuana was a reaction to the influx of low-wage Mexican immigrants in the 1920s, sparked in part by the Mexican revolution.

The rest of the world has blindly followed the US lead with disastrous results. Not only has the drugs war failed to stop, or even significantly slow, their production, trafficking and consumption, it has destroyed countries and communities and made some of the most unscrupulous and ruthless people on the planet fabulously wealthy and immensely powerful.

The specific aim of the war was to destroy and inhibit the international drug trade — making drugs scarcer and costlier, and thus unaffordable. That has only been partially achieved.

Prohibition has prevented some drug abuse by making forbidden substances less readily accessible and vastly more expensive than similar agricultural-based stimulants like coffee or tea but, despite this, the price of most illegal drugs has actually plummeted. The cocaine sold on the streets may be more expensive than coffee but it is much less expensive and much more potent than it was two decades ago.

A small part of this can be attributed to stagnating demand in the West. The 2016 UN World Drugs Report cautiously concluded that “the global cocaine market has … been shrinking,” and attributed this changing consumption patterns. Yet, perversely, it is on the producer and transit countries such as Kenya, that the war on drugs is focused. In fact, it amounts to a transfer of the economic, political, social and environmental costs of prohibition from rich consumer countries to them. 

To paraphrase a thought experiment related by Daniel Mejia and Pascual Restrepo in their essay, Why Is Strict Prohibition Collapsing?: “Suppose all cocaine consumption in the US goes to Canada. Would the US authorities be willing to confront drug trafficking networks at the cost of seeing the homicide rate in cities such as Seattle go up by 3000% in order to prevent cocaine shipments from reaching Vancouver? If your answer to this question is ‘perhaps not,’ well… this is exactly what Colombia, Mexico and other Latin American countries have been doing over the past 20 years.”

As their coffers swell up, narco-traffickers are able to corrupt governments and law-enforcement agencies and purchase political power across the global south. In Kenya, at least two County Governors, a Senator as well as members of the National Assembly have been implicated in the drug trade. Further, drug traffickers launder approximately $100 million a year through the country’s financial system, much of which ends up in the country’s real estate, inflating prices and making decent and safe housing unaffordable for the vast majority of the urban population.

By regurgitating the tough talk from the West’s failed war on drugs, President Kenyatta is essentially selling the country down the river. He would be better advised to adopt an approach more informed by the evidence of what has happened in the last century as well as by the interests of the people of Kenya. 

A version of this article was first published in The Elephant

Tuesday, February 28, 2017

Why The Doctors' Strike Is A Missed Opportunity

It is now nearly three months since Kenya’s doctors went on strike. The dispute centers on the Comprehensive Bargaining Agreement the national government and the Kenya Medical Practitioners and Dentists Union signed in June 2013 and which the latter is insisting must be implemented.

The Executive has been at pains to disavow the very agreement it signed and the doctors have had to defend the legality of their strike. The quarrel has caused untold misery in hospitals and drawn in the other arms of government as well as the Central Organisation of Trade Unions and the Kenya National Human Rights Commission. However, for all the sound, fury and chest-thumping, the sick and dying in Kenyan hospitals have little explanation for their calamity. Both sides have privileged spin over substance and confusion over clarity.

The government first claimed the CBA would be too expensive to implement, then argued that the document was not a legitimate agreement anyway since it had not been registered, then that the doctors were not its employees but those of the county governments and it was only playing a “facilitation” role; and finally that the CBA was illegally signed by an illegitimate official on behalf of a Ministry that did not exist.

On its part, the KMPDU has ignored court rulings and orders regarding the legitimacy of the CBA and the legality of the strike it has called; and courted public sympathy by seeking to portray the CBA as the solution to Kenya’s health problems and themselves as warriors for the common good not just for improvements in doctors’ welfare.

These mental gymnastics merit some attention. It is not the first time the government is making offers to its workers to avert industrial action that it later claims are too expensive to implement. Far from it. In fact, it is a tactic the state has developed into something of an art. The same ruse was pulled on teachers in 1997 and again in 2015. The country’s university lecturers are today on strike claiming the government has reneged on a similar promise for a 300 per cent pay rise.

Further, it is strange, to say the least, that the government was unaware that the doctors were not its employees when it signed an agreement with them. The CBA many times refers to the Ministry of Health as the employer, not the county governments. Further, in interviews with this writer, doctors themselves have claimed that their contracts, despite the devolution of health, are still with the Public Service Commission, not with county governments, to whom they say they are seconded. That when, in January, President Uhuru Kenyatta tried his hand at brokering a deal, he left the county governments out of the talks is an indicator of the government’s attempted sleight of hand, as is the idea that it took nearly 4 years to realize the document it had signed and that has been the subject of a dispute in the courts, was fraudulent. In any case, the courts have already declared the signature on the document, if not the document itself, is valid.

Some of the claims advanced by the KMPDU are similarly disingenuous. That the legitimacy of the CBA is problematic cannot be gainsaid. The Labour Court last October ruled that it must be negotiated afresh. A judge has already declared“there is no CBA.” While one can sympathize with the doctors as victims of a government confidence trick, that still does not render it a legally enforceable document. 

If anything, by calling the strike, the KMPDU spurned an opportunity offered by the courts to apply to get the CBA registered in January if talks with government had failed to generate an agreement. In so doing, they put themselves in their current predicament, where their officials have a one-month jail sentence hanging over their heads. Further, even a cursory reading of the CBA will reveal that, contrary to the spin being put out by the union, it is primarily about enhancing the welfare of doctors, not that of their patients. In an interview with Citizen TV in December last year, Secretary General Ouma Oluga stated “categorically” that the strike was about doctors’ suffering, not that of patients.

It is of course obvious that improving the welfare and training of medics as demanded by the CBA will have beneficial effects for Kenyans in general, including in helping to stem the hemorrhage of skilled workers out of the public health system. However, the KMPDU has blown these benefits out of al proportion, with claims such as that implementation of the CBA would end shortages personnel in the hospitals. By Oluga's own numbers, the country has about 8,000 doctors and trains just 600 annually against a requirement of 83,000. That means, even if each and every doctor, including those currently in private hospitals, were employed in the public service, it would still take over a century just to cater for the needs of our current population. The CBA thus does not even begin to scratch the surface.

More than anything, the lies and distortions by both the doctors’ union and the government have denied Kenyans an opportunity to deal the failures in the health system. The problems therein stretch beyond the welfare of doctors and encompass the motives behind the decisions that policymakers in the government have taken. Only by moving beyond the empty spin and honestly addressing the real issues can Kenyans begin to craft a system that works for both our long-suffering doctors and their even more traumatized patients.

Saturday, February 11, 2017

What Somalia Can Teach Kenya On Elections And Power Transitions

Incumbents losing an election and graciously conceding is not what most associate with the continent, let alone Somalia. By contrast, the Kenyan experience is rather typical. Here, no incumbent President has ever lost an election. Whether by hook but more often by crook, they manage to cling onto either the end of their terms or their lives, whichever came first.

But a graceful concession from a losing incumbent is exactly what the world witnessed in the Somali capital on Wednesday. The election of former Prime Minister Mohamed Abdullahi Farmajo as the country’s ninth President upheld a rather curious, perhaps unique tradition: Somalia has never re-elected an incumbent as President.

It’s a tradition that goes back to the founding days of the Somalia republic. In its first election following independence and unification in 1960, the popular Aden Abdullah Osman Daar was elected President. Seven years later, he would become the first African head of state to peacefully hand over power to a democratically elected successor -his former Prime Minister, Abdirashid Ali Shermarke.

Now this week’s election in Mogadishu was not, by any stretch of the imagination, one to be emulated. Due to the ongoing terrorist insurgency perpetrated by the Al Qaeda-allied al Shabaab, universal suffrage was out of the question. Instead 135 elders picked 14,000 delegates who elected 275 MPs and 54 Senators who elected the President. The process was marred by allegations of corruption, vote buying and intimidation, which is perhaps not surprising for a country that ranks at the very bottom of Transparency International’s Corruption Perception Index. The head of the country’s police publicly supporting the incumbent and security concerns led to both the shut down oftransportation across the Somali capital and the moving of the election to the airport, which is secured by troops from the African Union Mission in Somalia.

Much of this would be familiar to Kenyans as our own general election looms. Though not as dire as that of our neighbor, our system is not without it controversies. There are credible suspicions of attempts to steal it right from the voter registration stage, with public officials, especially chiefs, illegally co-opted into an effort to help boost registration numbers in areas perceived as supporting the incumbent Uhuru Kenyatta’s Jubilee party. Further, our global corruption ranking is not that much higher (relatively speaking) than Somalia’s and the expected deployment of thousands of police and security agents to safeguard the election speaks not just to the legitimate security concerns in the wake of our invasion of Somalia, but also to the government’s fear of its own people.

President Kenyatta has recently said he is willing to peacefully hand over power if he loses and to his credit, he has already delivered a historical first: in 2002, he became the only losing Presidential candidate from a major party in Kenya’s electoral history to deliver a concession speech. Whether he will remain true to his word remains to be seen, but, as Somalia illustrates, the fact of a chaotic and problematic electoral process need not preclude it.

Somalia also provides an object lesson in the dangers of the ethnic mobilization and military takeover of civilian affairs. Despite being one of only two largely ethnically homogenous sub-Saharan African states, fragmentation along clan affiliation is one of the main reasons the civil war has persisted for so long. Kenya itself had a taste of it in the violence that followed the disputed elections of a decade ago.

Another factor in Somalia’s disintegration was the military takeover that followed the assassination of President Sharmake in 1969. The Siad Barre dictatorship that followed set the country on the path to destruction. Kenyans should therefore be wary of occurrences that diminish civilian control over the military of give it a taste for civilian responsibilities. Thus the decision by President Kenyatta to appoint Gen Chief of Defense Forces Samson Mwathethe to chair a committee overseeing the implementation of government projects should be of concern as should the seeming inability of civilian authorities to hold the military to account following the debacles at Westgate, El Adde and most recently, Kulbiyow.

Somalis are a fiercely independent-minded lot, not as reticent in expressing their opinions as Kenyans are generally perceived to be. “Every man is his own Sultan” is how one 19th century visitor described them. Richard Dowden, Director of the Royal African Society, in 2011 recounted an incident in which a waiter publicly berates a government minister in a restaurant in Hargeisa, capital of the northern breakaway -and far more peaceful- Somaliland republic. Such a scene would be unlikely to be repeated here (except perhaps on our famously noisy online platforms). But maybe we could learn from that waiter the value of confronting, rather than accommodating, our lying and thieving politicians.

Friday, February 03, 2017

Death, Lies and Videotape - Why KDF Must Tell TheTruth About Casualties In Somalia

In the wake of last week’s sacking of a Kenya Defense Forces base in Somalia by the al Shabaab terror group, the Kenyan government’s communications effort have once again come under a spotlight.

The country had just marked the first anniversary of a similar attack on another KDF camp in the Somali town of El Adde in which close to two hundred Kenyan soldiers were estimated to have been killed. Estimated because the government has never released an official tally of dead, injured and captured. Instead, after initially issuing a few statements offering a chronology of events and promising to answer queries later, it has subsequently maintained a studious silence.

This time, after news of the Kulbiyow attack broke on Friday, the KDF initially put out a statement stating categorically that the attack had been repulsed and that the camp had not been overrun. A second statement later in the day asserted that nine soldiers, including two officers, had lost their lives and another 15 had been injured. It also claimed that at least 70 al Shabaab militants had been killed.




However, subsequent news reports, some of which claimed to have interviewed survivors of the attack, have raised serious doubts about the veracity of the KDF account. The al Shabaab, who run a pretty sophisticated propaganda machine, initially claimed to have killed over 50 soldiers and subsequently revised that figure upwards. Earlier this week, the group released gruesome pictures purportedly taken after the attack to back up their claims. The Standard newspaper, citing sources within the KDF, also reported that at least 68 Kenyan troops had died. A more detailed account in the Daily Nation also painted a grim picture of the camp being overrun and “pandemonium” as soldiers fled into the bush.

Following these revelations, the KDF and government communications appear to have retreated into silence. No further statements have been issued and, unlike El Adde, there has been no public comment from either their Commander-in-Chief, President Uhuru Kenyatta, or the Chief of Defence Forces, General Samson Mwathethe.

In both attacks, government communications have sought to minimize the scale of defeat specifically by either distorting or keeping mum about casualty figures, details of the incidents and the outcome of any investigations.

But does that matter? Not if you ask the pro-government online army on Twitter. Any attempt to seek clarification is met with accusations of propagandizing for the al Shabaab and having a morbid interest in death counts, as well as patently false claims that militaries across the world never reveal the true extent of their battlefield losses. It is not important to know how many died, so the argument goes, since even one is too many. Telling the truth about casualties, it is claimed, is demoralizing to our soldiers and gifts the terrorists a propaganda coup.

Yet the trouble that the government and the KDF go to to hide them itself demonstrates that the numbers do matter. The fact is, they are not being hidden from al Shabaab but from Kenyans and it is the official silences and mendacity, not the truth, that allow the terrorists’ propaganda to rule the airwaves unchallenged. 

Similarly, the tendency to spin rather than provide accurate information means that KDF accounts of incidents lack credibility. For example, in the aftermath of the El Adde attack, Gen Mwathethe briefed the press on the battle and response. Many of the details he gave, including claims of three suicide trucks, each with the explosive force of the 1998 US Embassy truck bomb as well as "truckloads of suicide bombers", have proven to be either gross exaggerations or outright falsehoods. The same pattern can be seen in the statements issued on Kulbiyow.

Further, as an article by Nyambega Gisesa to be published this weekend in the Daily Nation states, "since Kenya first went to Somalia in October 2011, no single commander has ever been suspended or fired". At the end of his press briefing on El Adde, Gen Mwathethe promised to provide further details once a Board of Inquiry had completed its work. Nothing has been heard from him since.

Into the void created by the KDF's unwillingness to give forthright and credible information steps the al Shabaab propaganda machine, inundating the media and internet with impeccably timed press releases, interviews, caches of (often graphic) photos and slickly produced video footage of incidents. For a while now, it has been clear that Kenya's official communications on its actions in Somalia have been no match for al Shabaab's. And there is a very good reason for this. KDF and government communicators have been preoccupied with the wrong "enemy"- the Kenyan people.

The overriding objective of government communications ever since the debacle at Westgate has been to keep Kenyans from asking uncomfortable questions. Rather than protecting soldiers’ morale or debunking al Shabaab falsehoods as is sometimes claimed, government propaganda has been focused on protecting senior officials' and officers' backsides. Revealing the real extent of deaths risks rousing public anger, stoking uncomfortable questions and demands for people to held to account. 

Yet, questions should and must be asked. Why did the KDF succumb to an attack that was a carbon copy of the El Adde incident, where it had suffered its biggest ever military loss? Why were lessons seemingly not learnt? What are the systemic failures that led to this and who should be held to account? As the Standard editorialized, “losing more than 250 soldiers in 54 weeks in two identical attacks speaks not to the consequence of going to war but the utter incompetence of the high command.”

The numbers matter. They may not tell the whole story, but they do tell an important part of it. The truth matters. The constitution subordinates the KDF to civilian authority and, in the end, its commanders and civilian overlords are ultimately answerable to the Kenyan people. There is an implicit bargain we have with the troops. They will follow orders and risk their lives to defend us and accomplish the mission they are given but we will hold their bosses to account to ensure that those orders and missions are reasonable and that they are properly equipped and facilitated to achieve them. That requires us to have an accurate understanding of the realities they face and the consequences these have. The silence over the needless waste of lives violates that bargain.

Friday, January 27, 2017

Why Yahya Jammeh's Ouster Was Not A Triumph For Democracy

In an article published on Aljazeera, Solomon Ayele Dersso, a senior legal scholar and an analyst on Africa and African Union affairs, avers that the lesson from Gambia for African countries is that “not only should [the opposition and citizenry] forge unity during elections, but also prepare to work with regional and international bodies for a negotiated exit guaranteeing peaceful transfer of power”. This may be true but the ouster of Yahya Jammeh also has another lesson for the continent’s despots:  accountability is dead.

The facts speak for themselves. Jammeh lost an election and, after initially accepting his defeat, subsequently chose to contest it. This was a first. In all other cases of disputed elections on the continent, the incumbent has from the very beginning declared himself winner. The Kenyan experience following the 2007 elections as well as that of the Ivory Coast four years later amply illustrates this.

In the respective cases, both Mwai Kibaki and Laurent Gbagbo refused to acknowledge defeat. What ensued was violence, international intervention (military in the case of Gbagbo) and ICC prosecutions. In Jammeh’s case, the avoidance of accountability is now presented as a win for the country.

The deal offered by the Economic Community of West African States (ECOWAS), the African Union and the United Nations assured the former dictator of “the kind of dignity befitting a citizen, former president and party leader”-shorthand for immunity from prosecution- and allowed him to keep the loot from his 22 years in power (presumably including the $11 million withdrawn from state coffers in his last two weeks in power).

This is the problem with the Gambia transition. It is not a case of the incumbent losing power and gracefully handing over power. Rather, it is the legitimization of the idea that heads of state who lose power can use their incumbency, and the implicit threat of violence, as a bargaining chip to escape accountability for crimes committed during their tenure.

This runs counter to the tenets of democracy. Giving up power once an election is lost should not be perceived as a particularly heroic act. It should rather be an inevitable consequence of the withdrawal of popular consent. There should be no requirement for quid pro quos, negotiations or international interventions.

Transfer of power in a democracy, as former Czech President and playwright, Vaclav Havel noted, should be mundane in a democracy. However, in the case of African countries, it is portrayed as an act of benevolence. When then Kenyan strongman Daniel arap Moi accepted the loss of his chosen successor or “project” (current President Uhuru Kenyatta), he was hailed as a statesman. Yet he should have never had a choice in the matter. Similarly, Yahya Jammeh should not have been allowed to think he somehow “deserved” a dignified exit. That was up to the Gambian people.

As a Kenyan who lived through the 2008 post-election violence and the pain it wrought, I can appreciate the imperative to avoid such eventualities. However, it is incumbent on all of us to consider the lessons that the folks in power draw. If, in fact, power transitions are to be negotiated between incumbents and the international community with immunity from prosecution offered as an incentive to peacefully vacate office, then that is a dilution of democratic norms, not a reinforcement of them.

International interventions in support of democratic norms should not seek to perpetuate the idea that incumbents can negotiate exits from power. Rather, they should simply seek to enforce the choice of the people. Unfortunately, the African Union, which has already committed itself to the profoundly undemocratic ideal of Head of State immunity as evidenced by its stance in the Kenyan cases at the ICC, sees things differently. Incumbency is still perceived as an implicit guarantee of impunity.

With support for Jammeh collapsing, and even his army chief saying he was not willing to fight to defend him from the ECOWAS forces at his doorstep, there was no imperative to cut a deal. By choosing that option, the international community did not secure democracy. Rather it validated the idea that losing despots can use their hapless populations as hostages to barter for a guilt-free departure. As Solomon Dersso puts it, “they can get a dignified exit, if they allow free and fair election.”

During last year’s US election campaigns, Donald Trump was heavily criticized for refusing to state categorically that he would accept the outcome of the election if he did not win. Four years hence, he will be up for re-election. If he loses and rejects the results (not as farfetched as one would think given his continued lying about voter fraud), does anyone imagine he would be offered a cushy retirement package to facilitate a peaceful handover of power?

Saturday, January 21, 2017

Why Kenyans Should Keep An Eye On The Trump Presidency


Despite the major changes inaugurated by the 2010 Constitution, the Kenyan Presidency still sits comfortably and unchallenged at the pinnacle of our politics. It is propped up by many of the norms that developed in the last half-century, especially during the dictatorships of Jomo Kenyatta and Daniel Arap Moi. Over the period, many looked to the United States for a model of how a powerful Presidency could be constrained. However, since last year, goings on over there have had a distinctly familiar ring.

During his unorthodox campaign, Donald Trump, who is to be inaugurated as President of the United States this Friday, violated with almost total impunity many of the norms, if not laws, that have served to keep American politicians in check for decades and centuries. "I could stand in the middle of 5th Avenue and shoot somebody and I wouldn't lose voters," he memorably described it.

“The American presidency has never been at the whims of an authoritarian personality like Donald Trump,” John Dean, White House counsel under President Richard Nixon from 1970 to 1973, told McKay Coppins of The Atlantic. “He is going to test our democracy as it has never been tested.”

Geoffrey M. Hodgson, Research Professor in the University of Hertfordshire, defines institutions as “systems of established and prevalent social rules that structure social interactions. Language, money, law, systems of weights and measures, table manners, and firms (and other organizations) are thus all institutions.” In their insightful book, Why Nations Fail, Daron Acemoglu and James Robinson, describe institutions as simply the rules, written and unwritten, that influence how systems work.

While the language may be slightly different, the intent is essentially the same. Institutions are about the way things work rather than merely a set of formal organizations or even formalized rules.

The United States system is a case in point. Americans love to hold up their constitution as the ultimate defense against tyranny. But while the formal rules regarding governance it proposes are an important bulwark, arguably American democracy is built on a foundation of social norms and expectations much more so than formal rules.

For example, the two-term limit for presidents was not part of the Constitution. Rather, it sprang from George Washington’s decision not to run for a third term and held for the better part of a century and a half until Franklyn Roosevelt violated it in 1940. In fact, it was not until 1951 that the US constitution via the Twenty-Second Amendment finally imposed term limits. Similarly, the fundamental role the Supreme Court plays in assessing the constitutionality of legislation is not expressly provided for in the Constitution either.

It is for this reason that Trump poses such a big threat to American democracy. His refusal to release his tax returns, for example, bucks a near-5 decade old practice observed by all major party candidates which is designed as a measure to enhance transparency. The multiple conflicts of interest he carries into the White House and his statements about similarly flash the finger at years So does his post-election lack of moderation and disdain for “political correctness”. Yet the latter has been crucial in helping to keep the ugliness of overt racism, xenophobia and bullying out of mainstream American politics. Trump’s demeanor during and after the election have however legitimized conduct previously considered beyond the pale.

Donald Trump already has changed America, and not necessarily for the better. In the next four years, he will continue to affect not just the US, but also attitudes towards it in countries across the globe. The question is whether he will fashion it in his own rather grotesque image or whether the country’s institution will prove resilient and tough enough to contain him. In either case, there will be valuable lessons to be learnt from the continuing American "experiment in democracy". For Kenyans, struggling to implement our own democratic system of governance and to develop the social norms and attitudes that will underpin it, it would be wise to pay close attention.

Sunday, January 08, 2017

The Tyranny Of Numbskulls

Over the last few weeks, the country has been embroiled in an acrimonious and largely inane debate on changes to the country’s elections laws. The controversial revisions to the Elections Act seek to introduce a “complementary mechanism” to the integrated electronic electoral system for identifying voters and transferring results from polling stations to tallying centres.

Yet no one knows what this proposed “complementary mechanism” is. It not defined in the law but has been widely interpreted to refer some sort of manual backup to be employed in case the biometric and electronic devices fail as they did in 2013. That would allow voters to be checked off a physical register, basically a printout of the electronic one, and for forms containing results to be physically transported from polling stations where all the voting and counting happens, to the tallying centres where results are ultimately announced.

If such a manual system is what is contemplated, it is not clear whether it would be different from the system that was in place prior to 2013. In essence then, the law would not be proposing a backup but taking the country back to an era where elections were routinely stolen. In his presentation to the Senate, Royal Media Services proprietor, SK Macharia, noted that of the five general elections held in the multiparty era, in only one had the candidate for President receiving the most votes been declared the winner.

In fact the move to an electronic system was in response to these repeated failures, which were the trigger for the 2007/8 post-election violence. In a 2010 paper, the immediate former chair of the Independent Elections and Boundaries Commission, Ahmed Isaack Hassan, declared that “based on the recommendations of the [2008 Kriegler Report], the Commission was determined to have a fully automated electoral process, from e-registration, e-voting and finally e-transmission of results.“ While the system the IEBC eventually settled on had both manual and electronic components, it is nonetheless clear that the latter was introduced as a cure to the former. The amendments seek to reverse this and now present the discredited manual system as the cure.

And remembering that the electronic system was meant to deal with specific problems in the manual system, it is notable that there has been little articulation by the amendment’s proponents of what has been done to fix those. That the experience of the 2013 elections where the IEBC was forced to revert to a completely manual system has not featured prominently in the debate is also telling.

But what is most galling is the fact that the entire debate is conducted without benefit of an understanding of how the electoral system as a whole is meant to function and where gaps and opportunities for mischief exist. There is also much conflation of issues which leads to confusion. For example, the case for a “complementary mechanism”, not as a backup, but as a check on abuse of the electronic system is much stronger when dealing with transmission of results than with voter identification.

In transmission, the two systems could function together simultaneously, each as a check on the other, as the IEBC had apparently intended in the 2013 election, with the instantaneous results transmitted via the electronic system being provisional until verified via the physical delivery of the form. The idea was to discourage the practice of election officials disappearing en route to transmission centres and eventually turning up with doctored forms. With the information having been already sent ahead via the electronic system, any discrepancy would immediately raise a red flag and the ultimate back up would be the ballot boxes and the ballots contained therein.

Since there is no dispute about biometric voter registration, the identification of voters via a physical printout of part the information contained in the electronic register has much less appeal. The requirement for the biometric registration was designed to solve the perennial problem of ghost or dead voters, first by ensuring the register is populated with details of real, living voters and secondly to ascertain that the person who turns up to cast a ballot is the actual registered person. It also eliminated opportunities for mischievous electoral officials to “vote” on behalf of registered voters who didn’t show up.

If the electronic voter identification system was to break down entirely, as it apparently did in 2013, any credible “complementary mechanism” would have to be robust enough to handle these challenges. A physical printout simply does not cut it.

Further, the lack of an audit has meant that we are reduced to putting out sporadic fires instead of addressing the system as a whole and dealing with root causes. We fail to see the wood for trees. Yesterday we were fighting over IEBC commissioners. Today it is voter identification and results transmission. All are important to fix but are only a small part of our dysfunctional electoral system which requires a complete overhaul. Everything from ID issuance to security to disposal of petitions needs to be looked into. 

For example, there is little discussion about the weaknesses shown up by Raila Odinga's 2013 petition against the election of President Uhuru Kenyatta. The Supreme Court had only 14 days to deal with it. The IEBC essentially ran down the clock by refusing to provide him the documents he needed to make his case until compelled to by the courts. As a result, was not heard on its full merits. In fact, as reported by George Kegoro, one Supreme Court Justice openly admitted that he might have ruled differently if he had had more time.  Yet we still have no law compelling the IEBC to hand over documents to petitioners nor are we contemplating changing the constitution to give the Supreme Court more time as recommended by former Chief Justice, Dr Willy Mutunga.

Clearly, the current debate has been held hostage to the narrow interests of politicians as opposed to those of Kenyans in general. The manner in which the Jubilee coalition has bulldozed the amendments through Parliament, despite its own Senators acknowledging that the Bill contains unconstitutional provisions, amply demonstrates this. In fact, the entire discourse on electoral reform has been polarized by politicians seeking advantage rather than attempting to reason out and fix the problems with the system. What they want is to win. Whether that win is secured in a fair and open manner is of secondary importance to them. 

Yet it is a matter of life and death for the rest of Kenya. Thus the passage of the amendments and their imminent signing into law by President Uhuru Kenyatta should not be the end of the matter. We still can and must free ourselves from the tyranny of numbskulls and insist that needed reforms are not left to the whims of politicians but are discussed and agreed in for a that include a much wider array of stakeholders and interest groups including but not limited to academics, professional associations, media, civil society and religious leaders. The reforms must also be about resolving the historical problems that have plagued our elections and ensuring a transparent, free, fair and credible vote, rather than a win for particular candidates.