Katiba Institute, in a book reviewing the Constitution 10 years on, says despite the provisions of the supreme law, deep-seated key issues remain stubbornly unresolved.
The book titled Ten Years On: Assessing the Achievements of the Constitution of Kenya 2010 says the unresolved issues “risk the credibility of future elections before they even occur".
It was launched on Tuesday.
A review by constitutional expert Seema Shah revealed there are flaws in voter registration, voter identification, voting and results counting.
She also cited challenges with political parties' behaviour and the independence and integrity of the Independent Electoral and Boundaries Commission.
“Together, they risk the undermining the Constitution,” she said in her review of the chapter on elections.
The book says despite constitutional emphasis on public participation, accountability and transparency, there is no requirement that elections be independently observed or monitored.
“The practice of elections does not seem to meet the high constitutional standards of democracy and integrity. In fact, all three of the most recent Kenyan national elections have failed in this regard.”
The experts argued that “either constitutional standards fail in practice or electoral actors violate the Constitution".
They further write that despite the Constitution setting a threshold for integrity in the IEBC process, it is still marred by opaqueness.
The practice of elections does not seem to meet the high constitutional standards of democracy and integrity. In fact, all three of the most recent Kenyan national elections have failed in this regard.
The experts said the process of registering to vote and the integrity of the register of voters have seriously marred the credibility of the past two elections.
They said, “The IEBC has its own faults as well, especially including inefficient and insecure data collection methods.”
“Together, these issues make it difficult for Kenya’s voter registration system and its register of voters to comply with constitutional standards of transparency and accountability.”
The experts further said they doubt whether the IEBC has the independence it is guaranteed by the Constitution.
They argue the IEBC is yet to operate in an environment where it is strictly “subject only to the Constitution and the law and not subject to direction or control by any person or authority.
“Despite the law, the IEBC’s independence has been widely questioned since 2013,” the experts said, citing the 2013 affidavit by former IEBC chairman Isaack Hassan.
“The affidavit had personal attacks on a particular presidential candidate, which revealed clear political bias,” the reviewers said.
They warned that even with a new set of IEBC commissioners, little has improved, "unfortunately".
“In the aftermath of the August 2017 election, the resignation of an IEBC commissioner and internal commission memos leaked to the public revealed serious internal divisions and allegations of political bias." the experts said.
Also highlighted as problematic, despite the constitutional requirement for clarity, is the management and transmission of results.
Currently, the process of counting and tallying fails to live up to constitutional standards of transparency and accountability
“The counting, recording and transmission of results have always been problematic and tainted with allegations of fraud," the experts' report read.
They said though “some genuine mistakes are inevitable during counting and tallying results owing to the high-pressure environments of Kenyan polling stations as votes are counted, the IEBC processes still leave a lot to desire in that regard.
“Currently, the process of counting and tallying fails to live up to constitutional standards of transparency and accountability,” the report read.
The experts recommended that methods used to complete results forms and the procedures through which mistakes and purposeful fraud are addressed be publicised.
“This would be so that citizens understand how their votes are counted and thus continue to have faith that their votes are counted.”
Also cited as problematic is the use of technology in results transmission, which the IEBC is found to have handled improperly in the past two elections of 2013 and 2017.
“The law is clear, directing the IEBC to electronically transmit and physically deliver tabulated presidential results to the constituency and national tallying centres. In 2013, the electronic results transmission system malfunctioned, causing a freeze in the streaming of results. In 2017, transmission remained unclear and problematic.”
The experts raised concerns the IEBC declined to open servers as ordered in 2017 adding it is unlikely it would heed the same in the forthcoming vote.
“If there is no will to be open under the current law, it seems unlikely that more legal provisions will change that.”
Also cited as a challenge is that the Constitution and law give little guidance on the nomination process by political parties, which have been in breach of key provisions.
“The IEBC is limited to supervising nominations only when parties request it. And the regulations merely explain the administrative steps and timelines related to filing nomination papers,” the experts said.
Recently, it emerged that electronic transmission of presidential results may fail as at least 1,100 polling stations are yet to be connected to the 3G network.
The IEBC is also yet to conclude the audit of the voter register, eliciting concerns from numerous parties concerned about ghost voters.
The commission is also yet to conclude the set up of the Kenya Integrated Elections Management System (Kiems) in line with the law.
A test run should be done 60 days before the general elections.
The polls agency is yet to communicate its readiness for the test run; the deadline is June 9.
The courts, however, gave a contractor the IEBC sought to engage the go-ahead to supply the equipment.
Experts also expressed concerns about the lack of clarity in the procurement of ballot materials, papers and other logistics related to the August vote.
(Edited by V. Graham)
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