The historic ruling by the Supreme Court of Kenya, annulling the outcome of the August 8 elections, has led to criticism of observer missions such as the European mission I led. It is important to reflect on our role.
As an independent and impartial observer mission, we frequently get criticism from one side or another with the statements we make. In Kenya, which is deeply polarised, we were often asked to take sides. Instead, we assess the extent to which the rights of Kenyans as enshrined in law are respected in practice. I did not hesitate to speak out on principles such as respecting the rule of law and the role of civil society, or the right to peaceful demonstration. This did not lead to appreciation from all.
When we called on anyone aggrieved to seek remedy through judicial process, those who mistrusted the courts disagreed. When we called on the police to refrain from intimidating voters or using live fire on demonstrators, the authorities sought to assure us. When we called on the electoral commission to work transparently and communicate clearly to all voters, they told us of the time pressure they were under.
There were also times we had discussions with EU governments, and we had to underline we operate independently from their views as well. We raise difficult questions, we listen to answers and concerns, and above all we carry on looking at what is actually happening. While we listen to a wide variety of stakeholders, we never take claims or rumours at face value.
There is huge pressure for observers to speak publicly after months of observing, and it would look suspicious if we stayed silent. Two days after the election I gave a press conference and published a 15-page preliminary statement, in which I also made clear our observers' work was on-going – the controversial results process was then only in its early stages. Still, the media generally seem to seek an answer to one question: Were the elections 'free and fair'? This is a term that EU observers never use. We did not 'approve' the elections, nor did we urge anyone to concede defeat.
The EU comprehensively looks at the entire election process: Registration, campaigns, election day and the aftermath. We assess how Kenyan institutions and parties play their role in relation to the Constitution. Later, and after lengthy consultations with all stakeholders in the process, we draw up recommendations on improvements to the electoral process. And we scrutinise our own work so as to run better observer missions in the future. Just as democracy building is a work in progress, so too is election observation.
A new factor complicating observer's work is the use of technology. The Kenyan elections relied heavily on a number of private companies and their systems. It was not possible for us to access the detailed workings of these systems. We did note with concern that the proper capacity and security tests of the new technologies being used for the first time were not run. The full Supreme Court ruling may shed light on details on this aspect when it is published.
Where there was a mismatch between the law and the practice we observed, we spoke out – privately in meetings or in public statements. And where there were positive points to note, we did as well. Election observation work is not only politically sensitive it is also methodologically technical. The media's hunger for one-liners and the level of detail in our reports are worlds apart.
The Supreme Court ruling in Kenya is historic, yet a lot of work remains to be done. It may be good to ask where impartial scrutiny will come from, if it is not from observers. We are continuing our work, impartially and independently, but always in service of the Kenyan people.