Besides ECK, the Kenya National Commission on Human Rights also has been very active in monitoring elections, as has its private sector counterpart, the Kenya Human Rights Commission. Numerous other nongovernmental agencies also monitor the electoral process, as the law permits monitoring by local and international observers.

References: Constitution of Kenya (Section 41).

Peer Review Comments: I am not sure that the Electoral Commission of Kenya (ECK) has a legally spelled-out mandate to monitor the elections; its job is to administer them. Traditionally, in Kenya, monitoring is done by NGOs acting of their own volition.

References: Constitution of Kenya (Section 41 (9)).

Faced with a critical standoff over reforms ahead of the 1997 general elections, a compromise was reached with minimal reforms, dubbed the Inter Parties Parliamentary Group (IPPG), which among other things, provided that parliamentary parties would nominate electoral commissioners on a pro rata basis. Into the 2007 elections, the outgoing president ignored IPPG and unilaterally replaced commissioners whose terms had expired. The opposition has judged this action to be an exercise in rigging the impending elections. Indeed, this was the basis of the stand-off after the December 2007 elections which led to protracted violence that killed 1,500 people and displaced another 500,000.

For insights into the electoral commission malpractices, see [ LINK ]

References: Constitution of Kenya (Section 41(3)).

Peer Review Comments: The actual performance of the Electoral Commission of Kenya (ECK) in the 2007 presidential election was poor.

References: The Electoral Commission of Kenya is chaired by a lawyer with extensive experience who has previously been a parliamentarian. Various other commissioners are lawyers with vast experience while others are people with distinguished public careers. The Commission's head office in Nairobi is well staffed, but its operations outside Nairobi rely to an extent on civil servants who could manipulate things in favor of their employer, the ruling party. Furthermore, the Commission does not have its own security apparatus, forcing it t relay on government security officers, such as the regular and administration police who take orders from their superiors. In the run-up to the 2007 elections, for example, some police officers imported into the western Kenya stronghold of the opposition ODM, were lynched by mobs who argued they had been sent as advance rigging teams.

References: Traditionally, Electoral Commission of Kenya (ECK) has announced electoral outcomes quite promptly, especially since ballot counting was decentralized to the district level. However, in its management of the 2007 elections, ECK apparently intentionally delayed announcement of results to facilitate fiddling of numbers, the ECK chair announcing publicly that he thought delays in returns reaching Nairobi were because electoral officers were "cooking" figures. This situation contributed greatly to Kenya's post-election violence witnessed up to March 2008. See one version of events at [ LINK ]

While it has a website, ECK has not made full use of this. Attempts to enable people to check their voter status have floundered due to technical hitches. Furthermore, ECK seemingly turned down offers to finance the computerization of the tallying process, which would have enhanced efficiency in reporting.

The Kenya National Commission on Human Rights has also been very prompt in releasing its findings, as have been the other independent national and international election monitors.

Peer Review Comments: The manual process of counting valid Electoral Commission of Kenya (ECK) raw data is to blame for the mess.They need to implement an e-recording system to avert acute manipulations since an e-copy would remain in the files.

References: The Electoral Commission of Kenya (ECK) has identified many electoral offenses but has been statutorily powerless to take action against any key offenders. One of the major problems in this regard concerns where to draw the line between the (outgoing) president's executive functions and his political functions.

Since the whole cabinet remains in office until a new one is sworn in, this also allows ministers to take advantage of the gray area, continuing to employ state resources even as they campaign as politicians. Widespread electoral violence and vote buying also go unpunished since they are participated in by politicians across the board.

Peer Review Comments: It is hoped that the office of Registrar of Political Parties established under the Political Parties Act 2007, which came into effect on July 1, 2008, will competently supervise political parties.

Sources: Media reports (Daily Nation, Standard, Kenya Times, People Daily).

References: While all Kenyans over 18 may acquire voting cards, this has not worked smoothly. Acquisition of ID cards has been quite problematic, more so in some than in other areas. Thus, for example, Kenyan of Arab stock are likely to have greater difficulties obtaining an ID because of their resemblance to neighboring Somalis. School dropouts attaining age 18 also have problems obtaining national IDs, meaning they might be barred from voting. While the Electoral Commission of Kenya (ECK) is mandated to ensure the smooth conduct of the whole electoral process, vested interests have undermined the smooth flow of elections, resulting from the inequitable distribution of constituencies, polling stations and ballot papers.

The failure to facilitate year-round registration means that some people are excluded due to the rush to register. The voter registers are also not as well maintained, with complaints arising of card holders not finding their names on the roll, as was the case with 2007 presidential candidate Raila Odinga. At the end of the most recent voter registration which closed at the end of August 2006, some reports estimated that millions of youths who had recently reached age 18 were not allowed to participate because they didn't yet have national identity cards.

References: Election Offenses Act (Chapter 66). The Criminal Procedure Code. The Penal Code.

Peer Review Comments: The National Assembly and Presidential Elections Act (cap 7 of the Laws of Kenya) provides for a procedure for approaching the court for remedies arising out of grievances connected with any election.

References: By law, electoral outcomes can be challenged in court. However, it is disheartening that some such cases have remained unresolved through the life of the Parliament about which they were filed, i.e. by the time of the following general election five years later. Mostly, such electoral appeals are filed by losing contestants rather than an ordinary aggrieved voter.

Peer Review Comments: Another unreasonable legal requirement is that if you file a petition in the courts, you must personally serve the respondent. For instance, the law requires the petitioner to hand over in person the petition together with the summons requiring the respondent to respond.

The problem with law is that it makes it impossible to serve the president and the ministers whose security details will not allow you reach anywhere near them. Members of parliament will also hide. As this same law also limits the time within which serve service should be made, it is a real impediment as most election petitions are lost on a technicality without the petitions being heard on their merits.

References: The armed forces are ineligible to participate in an electoral activity: for one, all people joining the forces surrender their civilian identification papers. In the case of Kenya, soldiers have largely remained neutral during elections.

As for the police, the situation is somewhat different. Since all public rallies must be cleared with them, and they fall under the office of the president, they have been known to manipulate matters depending on an applicant's relationship with the government. Indeed, the run up to the 2007 general elections saw movements of police across the country, suggesting they were being deployed to influence electoral outcomes. See [ LINK ]

Peer Review Comments: Indeed, there was a bizarre incident in Mbita during the run-up to the 2007 General Election where administration police officers disguised in civilian clothes were caught and beaten up by villagers who accused them of planning to rig the polls in favor of President Kibaki and his Party of National Unity. Station KTN followed some buses that allegedly transported alleged police officers who were sneaking out of Embakasi, Nairobi, at night.

Media reports: KTN, Standard newspaper.

References: The Presidential and Parliamentary Elections (Amendment) Regulation 2002.

References: For election observers to succeed in their work, they are entitled to the following: (a) Have access to polling stations, counting venues and the Electoral Commission national and local offices; (b) Obtain official information about the country and elections from all election officials so long as the information is factual, public and within the official's knowledge; (c) Attend meetings convened for the briefing of election observers or for any other purpose; (d) Receive cooperation from all election officials within the law; (e) Speak or communicate with any person at any place outside the polling station on matters connected with election or any other matter; (f) Communicate with any person inside the polling station (other than a voter) but even in this case, they must obtain the permission of the presiding officer and do so in a manner that does not interfere with the flow of the polling; (g) Attend campaign rallies and such like functions; (h) Be protected by political parties against any exposure to insult, hazard or threat in the course of their official duties; (i) Protection and security from Kenya police while in Kenya.

Peer Review Comments: Other constraints facing election observers include inadequate security; inadequate resources (equipment, transport, capital and personnel to cover all polling stations in certain parts of the country especially the remote areas); lack of cooperation from poll station officials; and hostility from voters who may be suspicious about an observer's political or social (ethnic) standing.

The failure of local observers, especially, to exercise objectivity and political impartiality has had a negative impact on the effectiveness of election monitoring.