What is Ground Zero

Ground Zero is an IPG Program under the Community Based Organizations (CBO) Caucus on Politics and Elections. IPG has brought together CBOs from around Kenya that focus on community civic engagement. Kenya faces a crucial general election in August 2017. The competitive nature of the election both at the national and local level and the contest around the electoral system necessitate diligence and action. The caucus works at monitoring the politics and electoral systems right from the local to the national level. Weekly and monthly reports are published that urge necessary action by specific actors required to consolidate the electoral process and to ensure the election and its outcomes is peaceful, free and fair.

Executive Summary

Unless Kenya moves in to quickly consolidate and legitimize its electoral systems, institutions and processes, the 2017 General Election presents a great threat to the country’s democracy, peace and stability. Interference and obstruction of institutions, systems and processes, especially from an opposition that is keen on scuttling the whole process and is yet to unequivocally lend its support, have left the country’s electoral institutions and timelines in abeyance with a real possibility that August will arrive and find the country unprepared.

The Government on its part is keen to ensure that an election takes place and is doing everything in its power and mandate to do so. In the absence of a joint consensus, the ruling party Jubilee in December 2016 moved to use its numbers in both houses of parliament to pass electoral law amendments crucial for the electoral process to remain within the law and constitution especially the critical timelines that would have lapsed in absence of the changes to dates.

The process of the selection of commissioners for the IEBC was itself a stage for high stakes politics. The initial five people shortlisted for the position of chairperson of the commission were revoked on the ostensible reason of lack of a clearance from the EACC.

The politics within the process was however high stakes where the opposition had co-opted the commission to produce candidates sympathetic to itself. The choices available for the president to pick from would have been a zero sum game in a process that woud have left the President’s hands tied. The consequent shortlist sent for both commissioners and chairman was also full of intrigue in a process that was largely sympathetic to the opposition. The commission that comes out of this convoluted exercise will hardly have the full faith of both the politics and the public. The process is hardly through and it wil be more time before a full commission is constituted. This is bound to affect the elections process.

The choice by the opposition to pick the issue of the use of technology during the debates into the electoral laws amendments wasn’t without mischief. The intentions behind the insistence on the use of technology was revealed when S.K Macharia appeared before Senate and made it clear that he would install a parallel tallying system based on the same technology as IEBC. The idea here is to create a parallel system for results transmission that will rival the IEBC and provide a platform for the announcement of parallel results. The danger in this is obvious as the Kriegler Commission noted and advised for the use of a single results transmission system to avoid this eventuality as was the case in 2007.

The second phase of the Mass voter Registration by the IEBC begins on 16th January 2017. The process will be done exclusively through Biometric Voter Registration with a target of six million voters. Voter education and publicity for the exercise are yet to begin in earnest.

Political parties are also yet to effectively start mobilization for the exercise. With an election where huge turn outs in certain regions have been characterized as rigging, the issue of turnout for voter registration is critical for all actors. The integrity of the process must

also be hindered from politics as was witnessed during the last registration exercise where the opposition claimed Jubilee areas had been favoured in the number of registration kits deployed.

The two major political parties Jubilee and ODM have announced mass member registration as they prepare for party primaries. Jubilee has indicated it will use smart cards as membership cards to facilitate an electronic database it can rely on in its primaries that will be under

the IEBC. ODM has indicated it targets 4 million members even as it moved to court to stop the requirements on candidates’ campaign finance requirements that the IEBC had issued a deadline for.

The 2017 elections will be the most competitive elections in Kenyan history especially at the local level. Even as obstructions to the electoral system portend the danger for real violence at the national level, the spectre of violence at the local level over the seats of MCA, MP and Governor are inevitable. Stiff competition has polarized local politics making it an emerging area of concern for early detection of conflict and for the setting up of conflict management mechanisms.

In light of these events, IPG recommends the following

• Both the Government and the Opposition should close ranks and commit themselves to supporting the entire electoral process. The obstruction and prevarication by the opposition is denying the electoral system the required legitimacy it needs to run a credible election.
• Parliament should expedite the process of vetting the proposed commissioners for the IEBC so that they take office immediately. Politicians and Kenyans should thereafter offer their support to the young commission as it will run an election within six months of assuming office. Any delay in the process is a clear sabotage of the electoral process.
• The Opposition and its affiliated Media should immediately abandon the idea of setting up parallel tallying centers by the media or other actors. This is an act in electoral subterfuge and presents a great threat to post election peace. This idea must be resisted by all as it goes against best practices learnt after the 2007 debacle.
• All Political and Civil Society Actors must seriously engage in people mobilization for the mass voter Registration Process. Democracy is about participation and the biggest percentage of eligible Kenyans should have the opportunity to participate.

• Political Parties should support the electoral systems and processes including the regulations and timelines in place. Political parties should be supporting the IEBC keep to timelines and not suspending some or pushing them to latter days which will only clog the IEBC when it has the least time to prepare.
• The Security Services should forewarn themselves and prepare for an election that will be violent at certain levels. The prospect of a national fall out is real while fall outs at local levels are imminent. There must be plans for the containment of localized violence both before and after the election.
• The International Community should get behind the electoral system and galvanize all the political actors to get behind it and support the entire system, its processes and institutions.

List of Acronyms
BVR	Biometric Voter Registration
CAK	communication Authority of Kenya
ICC	International Criminal Court
IEBC	Independent Electoral and boundaries Commission
MVR	Mass Voter registration
NCIC	National Cohesion and Integration Commission
ODM	Orange Democratic Movement
TUCK	Trade Unions Congress of Kenya
WDM	Wiper Democratic Movement

INTRODUCTION

The 2017 election is going to be the most competitive and complex in Kenyan electoral history. The electoral system and its processes are going to be the biggest issue in this election. An obstructed and unprepared electoral commission is ever so real that the risk the election will be compromised in efficiency and effectiveness is apparent. The electoral process will take place in a highly polarized environment. The process is fast running out of time that it will hardly have the time to build credibility and legitimacy for itself. The only way the system will acquire that credibility is in the way it conducts the election. The means and the results will be critical.

Two preeminent and opposed strategies by the opposition and the incumbency are bound to clash raising tensions and polarizing the country. Should the opposition succeed in scuttling the electoral process, a constitutional and political crisis would ensue in a polarized environment that will definitely end up in violence and mass atrocities. Should the government continue to use its numbers and mandate to ensure the electoral process is executed; the cries of unilateral action would continue with the opposition defining the electoral process as unilateral and rigged, polarizing the country further as well.

It is not enough to have the par excellence constitution Kenya has. The ultimate litmus test for Kenya’s democracy today is the legitimacy of the electoral process. The electoral system must inspire confidence in both its process and its results. Even if you’re not happy with the outcome of an election, you can accept it as legitimate if the electoral system is based on confidence that can only be achieved through the agency of the major political players. The opposition’s strategy of denying the electoral system this legitimacy therefore renders the whole process and its institutions one legged.

Legitimacy is difficult to measure, but one possible test especially for Kenya is the level of confidence the public would have that the system would produce free and fair results. Kenya holds her National Elections on 8th August 2017 if the entire political establishment gets behind the process. The electoral jostling and bargaining that precedes elections has begun in earnest. The high stakes poker game and the major issue that will define this election is the Electoral system and its institutions that include the Independent Electoral and Boundaries Commission (IEBC), The Supreme Court and the Security services. This system, its institutions and processes is Ground Zero for the 2017 elections.

This week’s report covers the critical areas of the Electoral systems, processes and institutions capacity to manage the election and addresses the attendant politics that shape the process. Kenya should forewarn itself of these coming dangerous scenarios and through constant vigilance and action work to prevent catastrophe from happening again.

International Policy Group Nairobi, Kenya

2. IEBC NOMINEES CONTROVERSY

The president’s IEBC nominees have hit controversy. President Uhuru Kenyatta nominated lawyer Wafula Chebukati for the position of IEBC chairman and other six individuals for the positions of commissioners. They were Consolata Nkatha Bucha Maina, Boya Molu, Dr. Roselyn

K. Akombe, Ambassador Paul Kurgat, Margaret Wanjala Mwachanya, and Professor Abdi Guliye.

The nominations have raised a number of controversies. Mr. Chebukati and Ezra Chilloba the current CEO of the commission hail from Trans Nzoia. The president was faulted for leaving out Tukero ole Kina, who was widely viewed as the appropriate nominee for the chairman’s post. The suitability of Ms. Nkatha Bucha Maina has also been questioned.

The public has been asked to submit their views on the suitability of the nominees for positions in the IEBC before vetting by parliament. National Assembly’s Justice and Legal Affairs committee has started assessing the qualifications of the nominees. The nomination of Chebukati has raised various queries following the revelations that other candidates performed better than him in the interview. Senator Mutula Kilonzo Jr said that the marks in the public domain indicated that the chairman nominee was not the best candidate. He also added that it raised concern of the undue influence in the selection criteria.

On 1st January 2017, National Assembly Majority Leader Aden Duale lashed out at those raising concerns that the nominee, Mr. Wafula Chebukati and IEBC CEO Ezra Chiloba are from the same community. He said that the Constitution doesn’t discriminate against any Kenyan on the basis of where they come from, adding that both the CEO and Mr. Chebukati were nominated in a fair process. He said that Chiloba had applied for the job and was recruited in a very fair, transparent, competitive and vigorous process and so is the current nominee for IEBC chair. He added that those who were raising concerns are those that believed in ethnic politics.

Members of the National Assembly will be recalled for a special sitting to consider the committee report after the vetting. The public is expected to submit their views through affidavits by 9th January 2017. On 3rd January 2017, the leader of Majority in the National Assembly, Mr. Aden Duale said that the house might be recalled for a one day special sitting to discuss the IEBC nominees. Duale said that they expected the speaker to communicate the

information to the Justice and Legal Affairs Committee. He also added that it is only the vetting process that was remaining since the president had forwarded the names of the nominees. Mr. Duale was speaking to journalists in Garissa town.

Rarieda MP Nicholas Gumbo accused the President of sidelining qualified people from the Nyanza region in the nomination of candidates to replace the outgoing IEBC chiefs. On 3rd

January 2017, he said he would oppose the list when it is tabled in Parliament for debate. The MP, who is also the chairman of the National Assembly’s Public Accounts Committee said he read mischief in the nominations.

On 3rd January 2017, the IEBC selection panel defended their choices of the new IEBC team. Mrs. Bernadette Musindi, the chairperson of the nine-member panel, in a statement defended its choice for the position of chairman, Mr. Chebukati, whom the Opposition has said was not the top candidate on the interviews, and, therefore does not merit the position. The panel stated that the allegations were not brought to their attention by any person and were, therefore, not in the knowledge of the panel during the selection process. Mrs. Musindi cited the elaborate process and openness in the recruitment, including publishing the long and short list of those that had qualified to proceed to the various stages of the interviews. This

included giving the public seven days to submit memoranda they might have had regarding the candidates.

DP Ruto defended the choice of the IEBC nominees for top positions. On 4th January 2017, he said that it was unfortunate that Chebukati’s nomination as the electoral body’s chair has

generated opposition because he comes from the same county as the IEBC’s CEO Ezra Chiloba. Ruto noted that the two are up to the task professionally and can serve Kenyans at different capacities given the opportunity.

• CONTROVERSY ON ELECTION LAWS

The Election Amendment Law has elicited a number of concerns from various stakeholders throughout the week. The National Assembly passed the Electoral Laws on 22nd December 2016 amidst criticism from the opposition. The major controversy is on adoption of a manual backup in polls.

On 2nd January 2017, a group of church leaders urged the Senate to pass amendments to the Election Laws Bill as they claimed that a manual backup would ensure that no voter was denied the right to cast ballots. The Inter-Faith Council of Kenya who were joined by other church leaders warned of “politics of acrimony” saying that all Kenyans desire to vote for leaders of their choice in a peaceful atmosphere. The leaders also faulted the call for mass action by Cord over the passage of the Election Laws (Amendment) Bill in the National Assembly.

Cord Senators embarked on a last minute lobbying for their consensus to prevail as opposed to party positions ahead of the Special Sitting that was conducted on Thursday. Mr. Mutula Kilonzo Jr said that some sections in the Bill violated the Constitution citing a decision by the MPs to introduce use of complimentary system for voter identification and transmission of results, without consulting IEBC. Senate Minority Leader Moses Wetang’ula said that a fair contest is one that is based on law acceptable to everybody and one that guarantees fairness. He also added that the numbers in parliament make a difference and also numbers in the street make a difference. Senate Majority Leader Kithure Kindiki said that the house did not have to take a unanimous position on the matter, but it was important for Kenyans to be given a chance to contribute their views through the public participation sessions.

On 3rd January 2017, the governors called for an exclusive use of an electronic system in this year’s General Election. Presenting their views to the Senate Legal Affairs Committee, which was taking public views on the contentious Election Laws (Amendment) Bill controversially passed by the National Assembly on December 22, Isaac Ruto (Bomet), John Mruttu (Taita- Taveta) and Kivutha Kibwana (Makueni) said the laws could potentially create major conflicts in the country. The three were representing the 47 governors. Nevertheless, Attorney General Prof Githu Muigai said that besides challenges in managing anxiety in the event of the electronic system failing, many voters could be denied their democratic right to vote. “Failure of an electronic system is almost guaranteed because that is the nature of electronics.

It is not a perfect science,” Prof Muigai said on 3rd January 2017 at the Senate chambers in Nairobi on the last day of the hearings, adding that the right of Kenyans to vote is a fundamental entitlement that should not be denied to any eligible Kenyan. The Attorney- General said that contrary to the position of critics, Kenya has a manual system that starts

right from the voting stage, supported by electronic components. “People who don’t vote weaken our democracy. Voters should not be turned away merely because the electronic system failed,” Prof Muigai said.

Media house owner S.K Macharia said that the ODM leader Raila Odinga was short-changed in the 2007 elections. He said that former President Mwai Kibaki who was declared the winner in the 2007 did not emerge top as the records of how Kenyans voted during that hotly contested poll. He was speaking during a public hearing at the senate chambers. He underscored the importance of an electronic system to uphold the credibility of elections, saying the 2007 results were tracked through satellite phones. He said that in 2013 media houses were disadvantaged because they solely relied on the Independent Electoral and Boundaries Commission (IEBC) tallying center to relay election results. Mr. Macharia said he will track the 2017 polls, adding that if the IEBC or the government tries to block him, he will sue to seek orders against such a move. According to Mr. Macharia, the Constitution guarantees freedom of the media, and that cannot be taken away by the Election Laws (Amendment) Bill. He said the manual register should be made available at every polling station, for dealing with isolated genuine cases.

In its presentation earlier, the Communications Authority of Kenya (CAK) supported a manual backup system, saying 22 per cent of the country is not covered by the 3G network that is required to transmit results electronically, meaning that some eligible voters might be locked out. Juma Kandie, CAK’s director for human capital and administration, said although satellite technology is a good alternative, the system cannot be installed before the next General Election, because of stringent procurement and installation procedures.

A public workers union wants the country to adopt an electronic system in the forthcoming elections to guarantee free and fair results. Trade Unions Congress of Kenya (TUCK) said that the country had made milestones in digital advancement. The union’s Secretary General said that there is need to embrace technology and only allow electronic voter identification and transmission of votes in the elections.

On 5th January 2017, the senate held a Special sitting in regard to the poll laws. The speaker Ekwee Ethuro called for the special sitting to enable the lawmakers to adopt or reject a report from the Legal Affairs Committee chaired by Busia Senator Amos Wako. Siaya Senator James Orengo had urged the House not to go down on record as one that did not have the courage to change even a comma introduced by Parliament. Gideon Moi said that a backup system should also be electronic and if it fails then the manual system would be adopted. He added that Jubilee as always said it is a digital government but they were now moving to analogue.

Beth Mugo said a backup does not mean reversing as there many instances of countries with electronic machines that failed. She blamed the opposition for being keen to cause chaos in the country to pave way for coalition government. The sitting went on till past 9 pm. The bill went through the various stages. During the voting twenty-six lawmakers voted in support of the Bill and ten against it, rendering a blow to the Opposition’s push to have the law struck out.

On 6th January 2017, Cord dismissed as rigged the vote on the controversial election law passed. Cord co-principals Kalonzo Musyoka and Moses Wetang’ula said voting in the senate was rigged and criticized speaker Ekwee Ethuro for presiding over what they termed an illegality. Mr. Wetang’ula said that the way legislation was passed was not fair, adding that an unauthorized senator had been allowed to vote.

Conversely, Jubilee legislators said that they were ready to amend election laws before the August polls. Senate Majority leader said that they supported the Bill to give IEBC enough time to prepare. Prof Kindiki said that parliament had to fast track the process coming up with the requisite laws required to guarantee a free and fair election while ensuring eligible voters are not locked out of the exercise. Mr. Murkomen dismissed claims that the Senate ignored views collected when the Bill was subjected to public participation. Kalonzo Musyoka announced that all Coed aspirants for the presidency, governorship, senatorship, national and county assemblies will meet next week on Wednesday to decide on the way forward.

On 7th January 2017, Narc boss Martha Karua asked Cord and Jubilee to dialogue on the laws. She said that negotiations were necessary to avoid chaos. She also added that it was not late to agree on the controversial issue. Moses Wetang’ula on the other hand asked the president to reject the bill. He said that the president would “ignite” fire if he signed the bill to law.

4.           THE IEBC

There is fear that the IEBC is unprepared for the elections in 2017. Since the Isaak Hassan led commission was hounded out of office and a new yet to be installed commission was agreed on, the Electoral system remains incomplete, uncertain and unprepared. It is suffering a legitimacy and credibility crisis that would be essential in conducting a free and fair election. These is mostly through obstructionist measures put in place by political actors whose intention is to scuttle the whole electoral system to ensure that either an election does not take place in 2017 or it only does so under their own terms and conditions.

The second phase of Mass Voter Registration (MVR 2) is set to begin on 16th January 2017. IEBC advertised for the positions of Voter registration clerks. The deadline for application was on 16th December 2016. Interviews for the position began on 3rd January 2017 in most of the constituencies.

The commission has also advertised for the positions of Ward-Based Voter Educators. The IEBC intends to conduct the Annual Voter Education Week and roll out a voter education campaign for Mass Voter Registration from 16th January to 15th February 2017. The commission has invited applications for temporary staff positions of Ward-Based Educators.

0n 7th January 2017, IEBC suspended a tender for the supply, delivery, installation, testing and commissioning and support of the Kenya Integrated Elections Management Systems. In a notice on the Daily Nation, IEBC notified all prospective bidders for the tender which was scheduled to be opened on 9th January 2017 at 11:00am that the opening was suspended till further notice. The notice also cited that the bidders will be informed of the new opening dates.

• POLITICAL PARTY ACTIVITIES

On 2nd January 2017, ODM National Elections Board Chairperson Judy Pareno said that the law only requires duly registered party members to be allowed to participate in the party primaries. The party is targeting a base of close to four million members all over the country. She was speaking after the extension of application deadlines for party aspirants to January

10. She said that the ODM Directorate of Registration is responsible for the exercise being conducted nationally through digital submission of personal details. She also added that nominations would begin in areas where they expected less commotion, while Nyanza and Nairobi will hold theirs at the end of April.

On 3rd January 2017, ODM’s National Chairman John Mbadi assured ODM supporters that the party is determined to, and shall hold free, fair and credible nomination of candidates. He said that the party took seriously the fact that the past two general elections the party lost seats that it ought to have won and saw its strong members shift and win tickets of other parties because of fraudulent nominations. Newly recruited Jubilee Party officials are expected to initiate registration of members in their areas. The Party’s Secretary General Veronica Maina said that Jubilee is laying structures on the ground even as party nomination preparations are underway. She announced that Jubilee Party will not declare the deadline for submission of registration until after the civil servants leave office by February 7th 2017.

On 3rd January 2017, Jubilee party officials in Kisii denied rumors of favored candidates. Party officials said that the party will not give tickets to handpicked individuals during nominations in Kisii County. The officials said that all candidates will be treated equally. Jubilee party has announced that it will launch membership cards for elections. President Uhuru Kenyatta and DP Ruto will on 13th January 2017 meet all aspirants vying on Jubilee Party ticket as they introduce a party membership card aimed at creating a level playing ground in nominations. The smart card will be made available to all party members. The party has shipped in 10 million cards and more will be brought as demand increases. Head of Jubilee secretariat, Raphael Tuju, termed the decision to introduce cards as revolutionary and added that the party would still invite the IEBC to supervise and oversee the nominations.

On 4th January 2017, the Wiper Party unveiled a team of five to head its National Election Board. Secretary-general Hassan Omar said the team was carefully and competitively appointed by party members in a meeting held on 12th December 2016. The nominees are Mr. Hassan Sheikh Ali, Mr. Thomas Ombati, Mr. Charles Kaloki, Ms. Agatha Solitei and Mr. Khalifan Shikely. According to the Secretary General, the party has mandated them to plan, organize and coordinate Wiper elections. On 6th January 2017, Martha Karua, the Narc Kenya leader, addressed a public rally in Runyenjes town and she drummed up support for her party and President Uhuru Kenyatta’s re-election.

6.           ELECTION / CAMPAIGN VIOLENCE

Majority leader in the National assembly is on the spot for hate speech remarks ahead of the 2017 General Elections. A sound clip has been circulating on social media where a voice calling for the barring of Kamba’s from registering as voters in Garissa. On 6th January 2017, six Ukambani leaders led by Kitui Senator David Musila called for the arrest of Mr. Duale, accusing him of incitement and hate mongering.

“You should have five youths at every polling station and if you are arrested because of violence, you will be released. I will pay your bills and all costs,” says the man alleged to be Mr. Duale in the clip. On Thursday, Mr. Duale dismissed the sound clip as a fake, saying it was the work of his political detractors. He said the clip is neither audible nor verifiable. “An audio clip in circulation online is fake and crude propaganda. It’s the work of a bygone era politician attempting to cook fake news,” Duale posted on his Twitter account.

On 6th January 2017, the National and Cohesion and Integration Commission (NCIC) said that it had launched investigations into allegations that Aden Duale was recorded inciting locals against a certain community (The Kamba) in Garissa.

Members of the civil society want the International Criminal Court (ICC) to start monitoring the Kenyan situation prior to the 2017 elections. On 6th January 2017, the team led by their chairperson Jesse Karanja said that there was need for the ICC to intervene and monitor politicians from both the opposition and government sides to avert post-election violence. Speaking at a hotel in Nakuru, Mr. Karanja said the hate speech at political rallies and on social media sites by both opposition and government is worrying and if not monitored and tamed can lead to violence. He added that if the ICC had known that the situation would one day warrant its intervention prior to 2007, it would have started monitoring the situation in 2005. Mr. Karanja cited a recent incident in which Millie Odhiambo was captured on video abusing President Kenyatta and the controversy surrounding electoral laws.

7. CONCLUSION

The process of deescalating electoral polarization and getting behind the electoral system by all actors must begin now. There is only six months left for this process. Kenyans must come out to demand that the electoral system is given the support it requires to conduct a credible election. This message must be Kenya’s loudest call in the next few months until all politicians get behind the process as they prepare to vote on August 8th 2017.

About The International Policy Group

The International Policy Group (IPG) is a nongovernmental organization dedicated to sustainable Peace and Justice. Its mission is to generate and share knowledge on peace and justice to positively influence policies and politics. IPG is primary concerned with the

governance, policy and institutional dynamics that impact on Peace and Justice, especially in poor countries worldwide.

Broadly, IPG is motivated by the recognition that the existing global peace and justice policy system has not adhered to the principle of equality of nations. It largely reflects the hegemonic structure of the post-1945 world order and has not adjusted to the reality of fundamental changes in the international system. The rise of new powers and the mounting influence of non-state actors have provided opportunities to promote peace and justice, but also posed

new challenges that might endanger these values. Scholarly and policy communities need to be informed of the challenges and opportunities for sustainable peace and justice.

The IPG pursues its mandate by:

• Engaging in research aimed at promoting peace and justice by addressing specific national, regional and global challenges and sharing knowledge through books, articles, reports, and other outlets;
• Convening influential policymakers and scholars working on issues of peace and justice to debate the merits of the frameworks through which peace and justice are promoted;
• Hosting roundtable series to inform the policy and scholarly communities of emerging challenges and solutions to peace and justice at national and regional levels;
• Providing a dynamic Web presence as a resource for researchers and policy communities on the issues related to the future of peace and justice.

Other Reports by IPG

The Dragon’s Trap            :         Kenya’s Politicized Anti Corruption Architecture. July 2015.

Peace Betrayed              :         The ICC Politics of Victimhood and the Threat of Instability in Kenya. October 2015.

Children of a Lesser God :         Report on the Investigation into the Power Politics behind

the removal of the Kenyan Force Commander of the UN Mission in South Sudan (UNMISS)