DR.DAVID THROUP: THE EVIDENCE

The Count

David W. Throup*


At 4:37 on the afternoon of Sunday, 30th December, 2007, Samuel Kivuitu, the chairman of the Electoral Commission of Kenya, after repeated delays led his colleagues into the basement of Nairobi’s Kenyatta International Conference Centre to announce the final results and to declare the winner of Kenya’s Presidential election. Members of the press, television reporters and party officials had gathered early that morning, anticipating an announcement at 8:30 or 9 o’clock, or by 10 o’clock at the latest but the day had dragged on with repeated false alarms. Senior officials of the Orange Democratic Movement had entered the room, indicating that an official announcement was imminent, only to leave again as the Electoral Commissioners delayed an announcement in order to reconcile discrepancies in the official paper work or to check with constituency returning officers. Rumours circulated inside the hall that the election was being rigged by some members of the Electoral Commission to ensure another five years in power for the Party of National Unity’s Mwai Kibaki.

The Crisis in the Electoral Commission of Kenya
Opinion polls in mid-October and early November had given Odinga a decisive lead. The Steadman Group, widely considered to be the most scientifically based and accurate of the Kenyan polls, on 11 October, 2007, had given Odinga a 16% lead over Kibaki: over the previous two weeks, support for the ODM candidate had jumped from 47% to 53%, while President Kbaki’s rating had fallen by one percent to 37%, with ODM’K’s Kalonzo Musyoka remaining unchanged far behind at 8%. During the next eight weeks, however, all the polls recorded a dramatic closing of the gap as Kibaki launched an uncharacteristically energetic campaign, abandoning his suit for brightly coloured T-shirts as he “pressed the flesh” on much reported walk-abouts. By mid-December, the gap between the two leading candidates had closed to three percentage points, less than the statistical margin of error, and the ODM began to fear that the election was slipping from their grasp.
The rumours had started 24 hours earlier, when Raila Odinga’s early lead in the Presidential election appeared to have evaporated. By Friday evening, 24 hours after the closing of the polls, Odinga had appeared to be heading for a landslide victory. Reports gathered by the main television stations had the ODM leader ahead by more than one million votes – 3.1 million votes to 2.1 million – with 56% of the vote compared to Kibaki’s 38% with more than half of the ballots counted. Official returns from the Electoral Commission lagged far behind, showing Kibaki leading by 175,000 votes after the declaration of only 28 of the 210 constituencies. ODM officials were already beginning to question the ECK’s impartiality. Many ordinary Kenyans were also suspicious and feared that the government might bring pressure to bear on the ECK to tilt the result in its favour if the margin of victory was close. The international media quoted an un-named spokesman for several “civil society” groups, who was recorded to have observed, “In this era of technology it is surprising that the ECK seems to be moving at a snail’s pace. It must do better…otherwise a situation will be created where sections of Kenyans will dispute the results.” A young female bank-teller when asked how the election was going on Saturday evening observed that “it had gone well but that it is now being rigged by Kibaki.” Such views were widely held; central Nairobi was virtually deserted by eight o’clock on Saturday evening, as the news spread that Odinga’s lead was eroding and that Kibaki might even have taken the lead.
The closer that the Presidential contest became the more intense became the scrutiny of the Electoral Commission. Samuel Kivuitu had taken over as chairman of the Electoral Commission less than four weeks before the 29th December, 1997, General Election. The 1997 election had been a disaster with ballot papers for both the Parliamentary and Local Government elections being dispatched to either the wrong polling station or even the wrong constituency. The delivery of material had also been delayed by inclement weather as torrential downpours disrupted the distribution of ballot boxes and papers in several regions. Thousands of polling stations had opened hours late, or had not been able to operate because the wrong ballot papers had been delivered. Even President arap Moi and the ruling-party KANU had complained that the election was being rigged as voting was delayed in his Rift Valley strongholds. The ECK had been forced to extend voting in certain polling stations for a second day, although even that decision wrought further confusion as voters were sent home from polling stations late on Monday evening with the assurance that they would re-open again on Tuesday, only to discover that the constituency’s Returning Officer after consulting with the polling station’s presiding officer had decided that the voting had gone sufficiently well at their centre that the station did not have to open for a second day. Such local decisions had left thousands disenfranchised as neighbouring polling stations did, indeed, re-open. Kivuitu, less than four weeks in office, had survived the uproar, deflecting the blame to the weather and to a newly-appointed FORD-Kenya recommended electoral commissioner who had treated her trip to inspect the printing of the ballots in Britain and to check that the ballot papers were put into the correct constituency and polling station boxes as an expenses paid shopping spree in London. Five years later, the December 2002 election appeared to have been success, eliciting few criticisms. Kibaki’s margin of victory in the Presidential contest and the National Alliance Rainbow Coalition’s victory over KANU in the Parliamentary election had been so overwhelming that minor irregularities in the count and tallying process were judged irrelevant.
Kivuitu’s most difficult task had come with the Constitutional referendum in November 2005, but this time the Orange movements opposition to the Kibaki Government’s proposed reforms – symbolized by the banana – had again been so decisive that the results went unquestioned and the performance of the Electoral Commission and of Chairman Kivuitu was judged a success. In reality, however, Kibaki and his inner circle of advisers judged first that their chance of winning the referendum was slight and secondly that there was no fundamental threat to the Kikuyu-dominated power-structure if the government’s proposals were defeated. Indeed, the rejection of the new Constitution would leave in place the “State House” Constitution masterminded by President Jomo Kenyatta in 1963-66, which had created Kenya’s all-powerful centralized executive. In a sense, defeat of the proposals or ‘no change’ was even better than securing the voters’ approval of the new Constitution. Political power had not been at risk in November 2005, merely a certain political embarrassment at losing the referendum. Consequently, the Government had spent little money and exerted little effort to influence the result of the referendum. Both Kenyan and international monitors had praised the referendum, suggesting that the country was making steady progress towards becoming a fully fledged democracy, one of the great successes of Africa so-called “second independence”.
Kivuitu’s capacity to resist executive pressure, therefore, had never really been tested. A former lawyer and Nairobi Member of Parliament during the single-party era, Samuel Kivuitu was a mild mannered, gentle man, who for ten years had successfully eased political tensions with a wry sense of humour, avoiding confrontation with both the government and the opposition. His relations with the affable President Kibaki were much closer than with the intimidating Daniel arap Moi, and he had few personal ties to the ODM leadership, most of whom had risen to political prominence over the past 15 years. Politically and by temperament and style, Kivuitu was a member of Kibaki’s generation. Under his careful leadership, the Electoral Commission of Kenya had progressed from being a mere agency of the executive to an independent body that in 2002 and 2005 had gained considerable respect for its seeming neutrality and competence. Under the intense political pressure of 29th-30th of December, 2007, however, the ECK’s authority and Chairman Kivuitu’s personal credibility were to be damaged beyond repair.
Doubts about the impartiality of the Electoral Commission had begun to ciculate on Saturday afternoon. Kenyans had woken up on Saturday morning to read headlines like “Raila Takes Early Lead” in The Saturday Standard. Under the heading, “Hot Race: 18 ministers led by VP swept [from power]; Kalonzo’s miracle disappoints; ODM gets 72 seats, PNU 17…” the newspaper reported, “It was the day the Cabinet was massacred. The Vice-President humiliated in a constituency contest, and the President trailing by a million votes in the national tally.” With such headlines, echoed by television reports, Kenyans could not be blamed for believing that ODM was heading for victory. In fact, the outcome was less certain and Odinga’s lead far from secure.

A Three Act Play: The Phases of the Presidential Count
Part of the problem stemmed from the fact that although Kenya’s television stations and three main national newspapers – The Standard, The Nation and The Kenya Times devoted considerable energy to reporting the results – even in the early stages of the count announcing figures from individual polling stations – they were less concerned about accuracy and analysis; little attempt was made to explain to viewers or readers what the results actually meant or to provide a political framework in which they could be assessed. In particular, no-one explained that particular regions of the country would declare their election results at different times. The first seventy results, for example, would come disproportionately from ODM strongholds. Constituencies in Luo-Nyanza and in Western Province, where the ODM was expected to secure overwhelming support, were geographically more compact and had fewer registered voters than Kibaki’s strongholds in Central Province and the Meru and Embu regions of Eastern Province. The 20 constituencies of Luo-Nyanza, for example, averaged only 64,563 registered voters, while the 24 seats in Western Province had on average 65,203 voters, compared to an average of 92,640 registered voters in Central Province and 85,245 in Molo and Embu. The 29 seats in Central Province alone, in fact, contained nearly as many voters as the 44 constituencies in Luo-Nyanza and Western Province combined, with 2,686,551 to 2,855,943 registered voters (1,291,261 in Luo-Nyanza and 1,564,682 in Western Province). With the addition of the 13 constituencies in Meru and Embu, which had an extra 1,108,191 registered voters, the pro-Kibaki areas had nearly one million voters more than the ODM strongholds around Lake Victoria and in western Kenya.
As a result, Raila Odinga took a clear early lead in the first returns and after the first 70 declarations in the Presidential contest led Kibaki on Friday evening by 2,000,000 votes to approximately 850,000, with 150,000 votes for Kalonzo. The problem was that Kenya’s election was a three act play; the second act, which would report to the Electoral Commission by noon on Saturday, 29th December, would come primarily from the Kikuyu heartlands of Central Province and the equally pro-Kibaki regions of Embu and Meru in Eastern Province. Odinga gained some votes in Coast Province and Kalonzo would poll well in Ukambani but overall Kibaki out-polled Odinga by more than two-to-one in this second tranch of seats. The incumbent needed to win some 2,500,000 votes to Odinga’s 1,200,000, with Kalonzo taking 300,000 in this second tranch of seats to stand any chance of retaining the presidency. The final act, the last 70 seats to declare, which included the remaining seats in Central and Eastern Provinces, the rural Coast, Northeastern Province, most of Nairobi where the number of registered voters was very high, averaging 159,462 registered voters, and Turkana and Maasailand in the Rift Valley. These results would swing the election back towards Odinga by at least 100,000 and possibly 200,000 votes. In such a close contest - as the pollsters and most observers and participants agreed that the 2007 Presidential election was likely to be – it was impossible to predict who would win, but it was clear that the election would swing wildly too-and-fro during the 210 declarations. After the first 70 or so seats, Odinga would lead by approximately 1,150,000 votes; then Kibaki would surge into the lead as Kikuyuland and other pro-PNU areas declared, more than wiping out Odinga’s lead after 140-150 declarations, with a margin of roughly 150,000 votes. This might or might not be wiped out by the last 60 or so declarations, which would probably marginally favour Odinga and the ODM.

The Media Adds to the Confusion
The problem with the December 2007 Presidential election was that it only too closely followed this scenario. Unfortunately, the official returns from the Electoral Commission lagged, which had to be checked and even double checked, and problems resolved, lagged far behind the less accurate coverage of the television stations and party agents. The newspapers added further confusion. The Nation reported on Saturday morning that Odinga was still far ahead of Kibaki, although Kibaki had pulled back 200,000 votes from the reports published in the international media and was now trailing by 2,450,871 votes to Odinga’s 3,341,116. This correlated well with the television coverage. By contrast, the only detailed constituency-by-constituency breakdown of the Presidential results, which was published in The Sunday Standard had Kibaki in the lead with 2,890,011 votes to Raila Odinga’s 2,801,846 and 357,501 for Kalonzo Musyoka after 136 constituencies. Unfortunately, the newspaper merely printed the 136 results and did not notice that Kibaki was in the lead. The Sunday Standard’s front page did little to instill confidence in either the Electoral Commission or the newspaper’s political coverage. Under the headline, “In the hands of ECK, Poll Fiasco”, the newspaper observed, “The Electoral Commission is the focal point, particularly over how it will try to wriggle itself out of the quagmire and poll fiasco witnessed in the last three days.” The ECK, it reported, on Saturday night had given itself 12 hours “to stabilise the situation by addressing the grievances raised by one of the parties to the unfolding dispute on the presidential vote tally.” The other side of the page headlined two sets of figures, which it implied had been issued by the Electoral Commission. The first, which claimed to report the presidential total at 2:30 on Saturday afternoon had Odinga narrowly in the lead with 3,880,053 votes to Kibaki’s 3,842,051. A second set of figures, which claimed to represent the situation at 6:30, four hours later, however, gave Odinga only 3,726,247 and Kibaki only 3,416,139 votes. One can only conclude that The Sunday Standard transposed the results. The Sunday Nation did little better; although it confirmed that Mr Kivuitu had announced at 2:30 p.m. that only 38,000 votes separated the two leading Presidential candidates after 180 constituencies had reported, it listed 19 constituencies as still “pending”, despite the fact that six of these had not only reported but their results had been published in The Sunday Standard.

The Margin Narrows: Is the Presidential Election Being Rigged?
Chairman Kivuitu’s announcement that Odinga was only 38,002 votes ahead of Kibaki with 30 constituencies still to declare created pandemonium at the Kenyatta International Conference Centre as ODM leaders and party officials protested. Pentagon-member William Ruto protested that ODM agents had been prevented from signing Form 16, which certified the results of the tallying process, in a number of constituencies and alleged that lights at various tallying centres had been switched off to disrupt the process. PNU leader Martha Karua, a former human rights lawyer, confirmed her reputation as the “hard man” of the government by countering that “We did not complain when ODM was leading. If one constituency must be verified, then all 210 should be subjected to the same process.” Kivuitu’s performance on Saturday afternoon was a turning-point. Attempting to diffuse the tension about the delay in receiving results with his characteristic humour, after acknowledging that he had been unable to establish contact with certain constituency Returning Officers in Embu and Meru, he unwisely observed, “We shall go and find out what cooking could be going on. But when they bring it to us, we shall ask them to return them to the person who asked them to cook.” He also wondered why results had taken so long to reach the KICC from constituencies that “are connected to the city by smooth roads” and seemed to speculate that the only reason for the delays could be that the results were being manipulated. The Chairman’s remarks confirmed to many that the Government was attempting “to cook” the results in order to secure a narrow victory for President Kibaki. From this moment confidence in the neutrality of the Electoral Commission began to wane. Later in the afternoon, Pentagon-member Najib Balala alluded to the chairman’s remarks when he criticized Kivuitu for losing control of ECK officials in the field. Kivuitu himself appeared to have lost confidence in certain Returning Officers and rumours spread that certain of the recently appointed Electoral Commissioners, all nominated by President Kibaki at the end of November, were changing the results returned by the constituencies in order to inflate the President’s total vote.
Delays in the arrival of complete documentation from constituency tallying centres aroused the ODM’s suspicions. Riots broke out in the party’s strongholds in Nyanza, around Eldoret in the Rift Valley, and in Mombasa and Kibera. ODM National Chairman Henry Kosgey and Pentagon-member Joseph Nyagah protested that some results announced by Chairman Kivuitu did not coincide with those announced by the Returning Officers in the constituency. The Aberdare hall threatened to become the scene of a violent confrontation, forcing Kivuitu to retreat to his offices in the Kenyatta International Convention Centre to oversee the process. An angry ECK chairman stated that the ECK would continue to announce the results received from the constituencies and insisted that those with grievances should seek redress in the courts. “We do not make them [i.e. the figures],” he declared. “Where there are issues we will ask for tallying sheets and go through them to see if the figures are correct but that will obviously take more time and we cannot sit and wait.” Hev was coming under intense pressure from the media, especially the Kenya Broadcasting Corporation, Nation Television and the Kenya Television Network, and other broadcasting organizations to announce the winner. The chairman pointed out that all parties and their candidates had signed the electoral code of conduct, which stated that protests could be filed through the courts after the ECK had declared the results. Mutula Kilonzo, the newly elected ODM-K MP for Mbooni, who is a prominent lawyer, supported Kivuitu, saying that the ODM’s request to delay the declaration of the results at the KICC was “tantamount to interfering with the independence of the commission in fulfilling its legal mandate.” The ODM’s William Ruto, however, continued to demand the postponement of declarations by the ECK until Returning Officers and party agents could arrive in the city to verify the results. After consulting with officials from the PNU and ODM-K, Chairman Kivuitu firmly rejected the proposal and declared that the ECK would press ahead.
When Kivuitu finished announcing the next block of results, however, James Orengo repeatedly demanded to be heard. When he was finally permitted to speak – as “a privilege not a right” stated Kivuitu – an angry Orengo shouted, “We have a right to be heard. We have a right to demand a recount. We are not going to allow this.” Orengo’s complaints provoked a reaction from Martha Karua, the Minister of Justice and Constitutional Affairs, who wondered why “ears are hurting when PNU figures are high.” She pointed out that the PNU had detected anomalies in over 100 constituencies but had opted to complain formally in writing instead of disrupting the conference. William Ruto then tried to restore calm but was shouted down by officials of his own party, the ODM. Finally, Chairman Kivuitu reassured the press conference that the ECK had been overwhelmed by the sheer size of the turnout, which had complicated the ECK’s logistics, and reassured everyone that “the commission will not be intimidated into announcing results that it cannot verify.”

The Results are Inspected by the Parties
A harassed Kivuitu, who by now had lost confidence in some of his ECK colleagues and some of the constituency Returning Officers, sought to resolve the crisis. Certain constituencies did not have signed 16A forms; others had conflicting forms, ostensibly signed by the appropriate officials and party agents; on others, the result had been crossed out and new figures added and it was unclear whether this had happened before or after the forms had been signed. In other constituencies, the 16A forms returned to the ECK differed from the forms handed out to ADM candidates and party officials at the constituency tallying centres. Further enquiries at the constituency level and discussions with Returning Officers failed to resolve the differences, which gave a narrow victory to President Kibaki. The ODM protested and secured the right from the Electoral Commission to inspect the paper-work from the constituencies along with a team from the PNU and representatives of KEDOF, the domestic observation organization. Led by James Orengo for the ODM, who had just won election in Ugenya, and Matha Karua for the PNU, who had been re-elected for the fourth time in Gichugu in Kirinyaga District, the teams scrutinized the returns from 209 constituencies. Working into the early hours of Sunday, the two teams reached agreement on 162 constituencies but remained in dispute over 47. Chairman Kivuitu and his colleagues attempted to resolve the situation by summoning the Returning Officers to Nairobi on Sunday morning further delaying the declaration of the final result. Meanwhile, the ECK came under ever more intense pressure from the political parties and the media, especially the KBC and KTN television networks, to declare the winner of the Presidential election, while the British High Commissioner and the American, German and Dutch Ambassadors, along with Maina Kiai, the government-appointed chairman of the Kenya National Commission on Human Rights, urged further delay to permit a more thorough-going reconciliation of the returns to be undertaken.
On Sunday, the teams resumed their activities at eight o’clock in the morning with Minister of Justice and Constitutional Affairs Martha Karua and George Nyamweya representing the PNU, while Ugenya MP James Orengo and Otiende Amolo represented the ODM. Shortly after noon, Ms Karua and Mr Nyamweya were called from the media centre in an attempt to resolve the deadlock over the reconciliation of the votes. Meanwhile, ODM Secretary-General Professor Peter Anyang’-Nyong’o insisted that the ODM would not accept the outcome unless the verification report was accepted by both sides and made public. “The electoral commission”, he warned, “must first make public the audit report of the votes that they went through at night before its chairman announces who the winner of the election is. If the announcement is made without the verification report, we in ODM will find it difficult to accept the results.”
The ODM, meanwhile, had become increasingly convinced that the election was being stolen from them with the connivance of key ECK officials. The results, they alleged, were being changed not merely at the constituency collation centres but were being altered when they reached the Kenyatta International Conference Center by certain electoral commissioners and their teams, which each oversaw ten constituencies in particular regions. The Daily Nation reported that “politicians from both sides engaged the ECK in a shouting match for much of the morning as they argued over the number of presidential votes that each of their candidates had garnered.” Tempers remained frayed throughout the afternoon as the media and party officials waited for Chairman Kivuitu and his ECK colleagues to announce the result. Rumours circulated that Kivuitu had resigned and that his deputy was preparing to speak to the media; other reports suggested that Kivuitu would announce that Kibaki had won and then immediately resign as chairman. Some stories suggested that the chairman had been offered $1 million to make the announcement or that his life had been threatened unless he complied. No rumour was too wild not to be at least half believed.

An Attempted Declaration and Its Aftermath
Unable to make any progress and now faced with increasingly insistent demands from State House for a final declaration, Chairman Kivuitu finally decided that it was impossible to delay the declaration for another 24 or 48 hours in order to check once again the details of the 48 problematic constituencies. At 4:37 p.m., therefore, he made his way to the front of the media auditorium and started to announce the last three results of the Presidential election. Kivuitu commenced with the ominous observation, “Now I will announce the results because you want me to”, suggesting that he placed little faith in the results that he was about to declare and would have liked more time to check the official returns and to speak with local constituency officials. Controversy erupted almost immediately when an irate James Orengo called upon the chairman to repeat his declaration of the Presidential election in Molo, which had given 75,261 votes to President Kibaki and 23,268 to Raila Odinga. In the midst of the declarations, Raila Odinga had arrived to a flurry of excitement. Uproar had erupted when one of the security policemen, standing near the entrance, appeared to have hit the ODM Presidential candidate over the head with his baton. Order was restored once it was discovered that the victim was one of Odinga’s personal security detail who had aggressively attempted to push a way through the GSU police cordon for the ODM candidate.
When Kivuitu repeated the Molo result, protests erupted again as Orengo demanded to know why ODM party agents at the tallying centre in the constituency had recorded only 50,145 votes for Kibaki? Pentagon-member William Ruto waved a Form 16A form that he claimed reported the correct result, shouting “We have a different tally of the results from Molo…You cannot continue reading results which are not real.” . The assembly then dissolved in chaos as Odinga, Ruto, Joe Nyagah, Najib Balala, Ms Charity Ngilu and Musalia Mudavadi were led out by the ODM security detail, as GSU officers pushed and poked them with batons. Odinga was pushed against a wall as the politicians were herded through a narrow staircase that leads from Aberdare Hall, where the media announcements took place. Meanwhile, Chairman Kivuitu and the commissioners were escorted out of the room without announcing the result of the Presidential contest as more than 100 GSU police sealed off the Kenyatta International Conference Centre.
The leaders of the ODM then immediately returned to the hall and occupied the seats just vacated by the Electoral Commission in order to denounce the tallying procedure. Eldoret North MP-elect William Ruto began by announcing the ODM’s figures for the disputed Presidential election in Molo and suggesting that similar irregularities existed in some 48 constituencies. Odinga spoke urging ODM supporters to remain calm and vowing that the party would hold a protest rally in Nairobi’s Uhuru Park the next day. The ODM candidate insisted vthat Kibaki’s total had been inflated by some 300,000 votes with “shameless and blatant alterations” of between 15,000 and 20,000 votes in Nakuru Town, Maragwa, Juja and Nithi. As Ruto began to speak once more the Government cut off the power supply in the conference room abruptly ending the Pentagon-members address to the television cameras.

The Declaration and Inauguration
The Electoral Commission and the Government meanwhile had made a series of major presentational errors that suggested that they were attempting to hijack the Presidency. Confronted by the ODM’s protests, Kivuitu and his colleagues retreated to a private room upstairs, protected by a phalanx of GSU guards, to which only certain representatives of the international media and the cameras of the state-controlled Kenya Broadcasting Corporation were admitted. An exhausted and depressed Kivuitu then announced that President Kibaki had secured 4,584,721 votes to ODM’s Raila Odinga’s 4,352,721 and 879,905 for Kalonzo Musyoka of ODM-K, and had consequently been re-elected for another five year term as President of the Republic of Kenya. The announcement was then relayed to Kenya’s other television broadcasters courtesy of the KBC.
Then at 5:30 p.m. Kivuitu was escorted by Police Commissioner Major-General Hussein Ali to State House, Nairobi, only to discover that he was to participate with Chief Justice Evan Gicheru and High Court Registrar Christine Meoli in swearing in President Kibaki. The Government had hurriedly brought the ceremony forward from the planned mass gathering in Uhuru Park which had been set for Wednesday, 2nd January. Appearing on KBC television, which again had a monopoly of the ceremony, Kivuitu seemed appalled by what was happening and as he handed over the official declaration of the result to President Kibaki ironically observed that he was glad to be “handing over the result in such haste lest a thief should come in the night and steal the Presidency.” This comment suggested, once again, that he was far from happy about the result and the pressures that the Electoral Commission had come under from the Government to declare Kibaki the winner. By the time that the President finished his inaugural address at 6:50 p.m.plumes of smoke were already beginning to appear over Kibera and Mukuru, and in Kisumu and Kisii. Many Kenyans were not happy with Kibaki’s re-election and believed that he had been rigged back into office with the connivance of Kivuitu and the Electoral Commission of Kenya.

The Fundamental Problem: No-one Knows who really Won
Clearly, the ECK Chairman no longer had full confidence in President Kibaki’s victory. The delays in collating returns, especially from Meru and Embu, aroused suspicion although the figures which reached the Kenyatta International Conference Centre were perfectly plausible, taking into account the high number of registered voters and the voting history of the constituencies, which had been pro-Kibaki strongholds ever since the first multi-party election in 1992. Anomalies and inaccuracies have been common in all Kenyan elections. In 1997, the international observers had questioned the validity of the Parliamentary result in a dozen constituencies – seven KANU and five opposition – which could have changed the result of the election as KANU had an overall majority of only four seats in the National Assembly. The presidential ballot, however, had never been questioned as the margin of victory until December 2007 had always been fairly wide, despite the fact that President arap Moi had secured only 42% of the total vote in 1992 and 1997. Nevertheless, he had enjoyed a safe plurality over his nearest challenger and had encountered no problems in meeting the other two requirements that he won election to Parliament and secured 25% of the vote in five of Kenya’s eight provinces. Both Kibaki and Odinga had satisfied these requirements, winning overwhelming victories respectively in Othaya and Langata, while Odinga had satisfied the 25% rule in six provinces (the exceptions were Central and Eastern Provinces) and Kibaki everywhere but Nyanza. The problem was that the election nation-wide was so close that it was virtually impossible to tell who had won the national vote. Everyone recognized that the Electoral Commission’s final figures of Kibaki’s 4,584,721 and Odinga’s total of 4,352,993 were imperfect, the question was how imperfect were they? Had the election been rigged or did the discrepancies noted by ODM and more impartial observers reflect a deliberate attempt to inflate the President’s votes and/or to reduce Mr Odinga’s?
Kibaki had assumed office on 30th December, 2002, as the leader of the landslide-winning National Alliance Rainbow Coalition, which had brought together a few weeks before the election a host of the country’s ethnic-based political parties, united in the fledgling National Alliance of Kenya, and the Liberal Democratic Party, a break-away faction from KANU, which had ruled Kenya since independence in December 1963. Recuperating from leg and neck injuries after a high-speed car crash early in the campaign, Kibaki himself had played little role in NARC’s triumph, which had been directed by LDP chief Raila Odinga, who had stepped into the void. Odinga had campaigned tirelessly for the 70-year old Kibaki, addressing rallies throughout the country. In a real sense, Kibaki had owed his accession to the presidency more to Raila Odinga than to any other individual. Even after the announcement of the new government, which broke the memorandum of understanding between the two parts of NARC, which had given them equal representation in the Cabinet and in the appointment of Assistant Ministers, Odinga had publicly kept quiet, remaining loyal to Kibaki despite the angry protests of many of his supporters among LDP Parliamentarians. As the Kibaki Government failed to address the demand for constitutional reform, especially for the reduction in power of the presidency and for the creation of an executive Prime Minister, as had been agreed by NAK and the LPD before the December 2002 campaign, relations between the two men deteriorated, although as late as December 2004, Kibaki had attended the wedding of Raila Odinga’s daughter – as, indeed, did former President arap Moi. Only with the run-up to the referendum on the Government’s constitutional proposalks and the emergence of the banana (pro-government proposals) and orange (anti-the proposed changes in favour of the more drastic reconstruction of the Constitution advocated at the Bomas constitutional assembly in 2004) camps, did personal relations seriously deteriorate with Odinga’s expulsion from the Cabinet, along with his supporters.
Following the 27th December, 2007, election, the rivalry between the two men threatened to tear Kenya apart. The country had never been so deeply polarized. President arap Moi may have been disliked by the donors but in many ways even following the advent of multi-party politics in December 1991, he had remained Kenya’s most popular politician. Arap Moi had been the second choice of many Abaluhya, Luo and Mijikenda voters who had given their votes to Jaramogi Oginga Odinga in 1992 or to his son, Raila, or FORD-Kenya leader Wamalwa in 1997, as well as commanding the overwhelming support of his KAMATUSA coalition (the Kalenjin-Maasai-Samburu-Turkana bloc-vote) that had emerged during the 1980s. Neither Kibaki, nor Odinga, could command such nation-wide legitimacy. Whoeever won the 2007 election, Kenyans would be deeply divided and with the margin of victory so narrow – and so controversial – the occupant of State House’s legitimacy would be questioned.

The Media Reaction
The initial reaction to the declaration of Kibaki’s victory was relatively muted. Monday’s Daily Nation carried the headline, “Chaos as Kibaki sworn in: Kivuitu declares PNU candidate winner of State House; ODM says Raila is President-elect; Michuki suspends live broadcasts; Violence erupts.” Secondary headings reported that business and religious leaders had called for restraint, while the British High Commissioner and the American Ambassador were reported to have asked the contestants to accept the results. The Standard, which had been consistently more pro-ODM in its campaign coverage, was even more restrained, reporting a “Fresh term for Kibaki as ODM rejects results: Chaos erupts; President sworn-in as riots hit most parts of the country over rigging claims.” Inside, The Nation published a four page “special report” providing a preliminary analysis of the results of both the Parliamentary and Presidential elections. Based on inaccurate figures, this seemed to suggest that there were more anomalies in the results – with suspiciously high total turnouts of 90% or even more than 100%, or in major discrepancies in the number of votes cast in the two separate ballot boxes – in ODM strongholds than in pro-Government areas. Thus, the presidential votes in Eldoret North (William Ruto’s constituency), in Emgwen, in Narok South , Bondo (the constituency of Dr Oburu Odinga, the elder brother of the ODM’s Presidential candidate) and Kisumu Rural (the seat of the party’s Secretary-General) – all ODM strongholds – were reported to be over 100% of the registered electorate. Elsewhere, the coverage of Kibaki’s victory was largely positive. Such reports risked further enflaming the situation, suggesting that the ODM’s claims that the Government had rigged the election were a deliberate attempt to subvert the democratic process and, furthermore, concealed the fact that the ODM had rigged the election even more blatantly in its own strongholds. Maina Kiai of the Kenya National Commission on Human Rights, a government-sponsored body, was so alarmed that he immediately summoned a press conference for Monday afternoon at which he called for peace, condemned the country’s politicians for exciting ethnic animosities rather than campaigning on ideological grounds, and specifically criticized The Nation’s report as inflammatory, inaccurate and targeted to discredit one political party – by implication the ODM.

The Domestic Observers’ Reaction
Meanwhile, KEDOF (the Kenya Elections Domestic Observation Forum), which had deployed 454 constituency observers to cover the campaign and sponsored 17,000 poll observers on election day to observe the voting, the count at polling stations and the tallying process by the constituency Returning Officers had issued its preliminary verdict. Its observers had been equipped with a 24 page checklist to recall all critical aspects of the process. After making largely positive observations about the voting process and the polling station counts, the KEDOF report criticized the delivery of constituency results to the ECK by Returning Officers from “certain regions”. It expressed concern the fact that Chairman Kivuitu had not been able to contact certain Returning Officers, despite the fact that the ECK had provided them with mobile telephones and adequate air-time, including satellite telephony for remote areas. KEDOF officials also criticized the ECK’s acceptance of results submitted irregularly, such as by photocopies of statutory forms, instead of the original documents. It judged that “The national re-tallying and announcement exercise was characterized by suspicions and disputations towards the end.” Noting that the ECK had permitted two representatives of each party and five neutral observers (including two from KEDOF) to observe and check the re-tallying, disparities remained in 98 of the 191 constituencies that had then declared, with serious differences, which the representatives of the political parties could not agree to reconcile, in roughly half of the problem constituencies. The most serious discrepancies, KEDOF reported between the results announced in the constituencies and by the ECK in Nairobi were in Central Province; “central Eastern”, i.e. presumably Meru and Embu;- pro-Kibaki areas - and in the Rift Valley, an ODM region. Some results had been inflated, while others had been reduced, and photocopies had replaced the original copies of Form 16A in several cases. KEDOF observed, “In our view there were high possibilities of the manipulation of results in all instances where photocopies were used in place of original forms.” Unfortunately, this had occurred in most constituencies in Central Province, Nyanza Province and in Embu and Meru, in other-words in the electoral strongholds of both Kibaki and Raila Odinga. Many forms – both 16A and 17A - had clearly been filled in by one person instead of by representatives of the different parties, while in others the names of party agents were missing. As a result, KEDOF concluded that while the preparations for the election and the actual voting process at the polling centres had been free “the handling of the results of the process thereafter, in our opinion, were questionable.” It noted that “there are significant discrepancies in figures released by the tallying centres and those by the ECK at KICC, which make the concerns of agents of some of the presidential candidates legitimate.” Key ECK officials at the constituency-level, especially polling station presiding officers and their deputies, had disappeared with the returns and suspicion had been aroused by the delay in announcing the results which “led to heightened fear, insecurity and anger in Kenya.”
Overall, the KEDOF preliminary statement on the count was a cautious document, which suggested irregularities in the process in the strongholds of both leading candidates, criticized the behaviour of ECK officials at all three levels of the process – at polling station counts, at the constituency tallying-process, and in the re-tallying and declaration process at the KICC – without suggesting that the problems amounted to the rigging of the election on behalf of the government. No specific constituency results were mentioned or the total number of problem votes asserted. Unfortunately, the European Union Observer Mission was not so cautious.

The Reaction of the European Union Observer Mission
The chief observer and deputy chief observer of the European Union Observer Mission, Alexander, Count Lambsdorfff, and Mr Graham Elson, held their press conference the following day, Tuesday, 1st January, 2008, at the Inter-Continental hotel. The European Union was the largest foreign observer mission. The core team had arrived early in November and for the past six weeks teams of long-term observers in teams of two had travelled throughout the country, observing the campaign in the constituencies. Thus, the mission had deployed more than 40 experienced personnel. This team was reinforced by an additional 120 short-term observers, who arrived shortly before Christmas, enabling the mission to dispatch two member teams to some 75 of Kenya’s 210 constituencies. Although this fell far short of KEDOF’s coverage of more than 20,000 of the country’s 27,700 polling stations, it was an impressive achievement and should have provided an accurate snap-shot of the election.
There was much in the observer mission’s detailed 15 page preliminary report that was considered and undoubtedly true. Count Lambsdorfff noted that competition in the national election had been unfair as pro-Kibaki candidates had had access to state resources and that the KBC had provided biased coverage in favour of both President Kibaki and his supporters It went into the deployment of ECK personnel, the voting day procedures at polling stations, and the counting process in considerable detail. Count Lambsdorfff, like KEDOF, noted the delay in the declaration of results by returning officers, especially in Central and Coast Provinces.
Unfortunately, despite advice to the contrary, the European Union Observer Mission decided to emphasise at their press conference serious discrepancies recorded by their their observers in two constituencies and to suggest that similar problems existed in at least ten other constituencies in pro-Kibaki areas. In all of them, European Union observers had been denied access to the tallying process. Although the European Union Observer Mission did not identify which party was to blame, Count Lambsdorfff had already suggested in a press statement on Sunday, as soon as Mr Kivuitu had announced the result of the Presidential election, that the Electoral Commission “had not succeeded in establishing the credibility of the tallying process to the satisfaction of all parties and candidates in the presidential race.” He had insisted that “the result for the Molo constituency, for example, was announced in the presence o0f EU observers at the constituency tally centre as 50,145 votes for President Kibaki, while the ECK declared the result for the President to be 75,261 votes.” Concluding, he observed, “Because of this and other observed irregularities, some doubt remains as to the accuracy of the result of the presidential election as announced today.” The implication was obvious.
On Tuesday, Count Lambsdorfff re-iterated the European Union Observer Mission’s doubts, cautiously drawing attention to “serious inconsistencies and anomalies” in the results announced by constituency-level Returning Officers and by the Electoral Commission headquarters. The mission declared that result forms from Lari and Kandara had been altered, while in Kerugoya-Kutus there was a difference of more than 10,000 votes in the number of presidential and parliamentary votes. In Mathioya, Kaloleni, Mvita, Kisauni, Changamwe, Likoni and North Imenti, the results had only been released in the constituencies after they had been confirmed by the ECK in Nairobi, suggesting that the results might have been manipulated and co-ordinated with the ECK before they were declared in the constituencies. In Nyeri Town, EU observers were informed that they could not secure a copy of the results until the Returning Officer came back from Nairobi where he had gone to consult with the ECK and in many constituencies party agents had complained that they had not been given the result forms. European Union observers had also been denied access to the central tally in the KICC. Overall, the European Union Observer Mission’s statement judged that “problems started after the close of the polls….Lack of transparency as well as a number of verified irregularities therefore cast doubt on the accuracy of the result of the presidential election as announced by the ECK.” As a result, “The General Elections in the Republic of Kenya have fallen short of key international and regional standards for democratic elections.” This was a damning verdict considering the abysmal record of the most recent Ethiopian, Ugandan, Rwandan and Zanzibar elections.
Such anomalies, however, were not unusual; similar problems had been widespread in previous elections, but the EU, by implication, saw a sinister motive in these irregularities. More seriously, Count Lambsdorfff asserted that European Union observers in Kieni had reported that Kibaki had won only 54,337 votes, while Chairman Kivuitu had announced a total of 72,054. Lambsdorfff also re-iterated the claim that he had made on Sunday evening about the discrepancies in the Molo Presidential vote, where the ECK seemed to have awarded the President an additional 25,116 votes. These were serious allegations, especially in Molo, a racially mixed constituency in the Rift Valley. The neighbouring Kueresoi constituency, which had been carved out of the old Molo seat before the 1997 election, had been the scene of violent conflict over land claims between the local Kikuyu and Kalenjin communities. To allege that the Government had inflated its margin of victory in Molo by more than 25,000 votes was unwise and likely to fan the flames of ethnic conflict. In fact, the Molo and Kueresoi constituencies have become one of the three main trouble-spots in the racial clashes since the election with thousands of families on both sides forced to flee and more than one hundred people killed.
Unfortunately, the European Union observers were probably wrong. Any analysis of the past voting behaviour of these two constituencies or, indeed, a comparison of the Presidential and Parliamentary votes on 27th December, 2007, would have confirmed that the figures announced by the Electoral Commission were more plausible than the result reported by the European Union’s observers. Pro-Kibaki candidates in Kieni, for example, a Kibaki stronghold in the President’s home district of Nyeri, secured more than 74,000 votes in the Parliamentary election, while the ECK had awarded Mr Kibaki with 72,054 votes. A vote for Kibaki of 54,337 would have meant that only 64.87% of voters had bothered to cast their ballots in the Presidential election, some 20% less than the turnout in neighbouring constituencies, such as Ndaragwa and Tetu, and, indeed, 20% below the turnout in Kieni in the December 2007 Parliamentary and local council elections. Voters were confronted with three ballot boxes, marked for the Presidential, National Assembly, and local council elections and virtually all voters cast ballots in all three boxes. Political scientists have hitherto assumed that if the total votes cast in the three elections varied by more than 3% then that was suggestive of rigging. In 1992, the Democratic Party’s candidate had won 93% of the vote in Kieni and Kiabaki, himself, as the party’s Presidential candidate had secured 92%, while 3% had gone to the other major Kikuyu Presidential candidate, Kenneth Matiba. It seems unlikely that President Kibaki would fall so far behind the pro-Government Parliamentary total in the same constituency, given the intense sense of ethnic solidarity which pervaded Central Province and Nyeri District particularly in December 2007.
The Molo question was similar and, as noted, potentially far more serious in its ramifications. Here too, the EU observers’ figures, which were the same as those declared by James Orengo and William Ruto at the KICC on Sunday afternoon as they had protested Chairman Kivuitu last three declarations, are difficult to reconcile with the voting record of the constituency since it was re-drawn before the 1997 elections and with the results from the other Kikuyu inhabited constituencies in Nakuru District. The ECK figure amounted to a turn-out of 78.36% of registered voters in Molo, which corresponded closely not only with the other Kikuyu-inhabited seats in Nakuru District but also with the turn-out in neighbouring pro-ODM seats in Kueresoi (76.80%) and Narok North (81.54%), whereas the EU Observer Mission figure reduced the turn-out to 62.78% or nearly 14% below the average for Nakuru District.
The reasons for these discrepancies has not yet been resolved but statistical analysis of the results suggests that the final result announced by the ECK in Nairobi is more plausible than the figures declared by the Returning Officers in constituencies and reported by the European Union Observer Mission and party agents of the ODM.
Inevitably, the claims by Count Lambsdorff carried a great deal of weight and profoundly influenced the analysis of the election provided by ambassadors from European Union countries, especially the British, Dutch, German and Swedish heads of mission who had invested a great deal of energy and money in the election. Unfortunately, although couched in cautious, diplomatic language, the Count’s remarks ignited a media frenzy as international correspondents, echoed much more hesitantly by their Kenyan colleagues, rushed to declare the election rigged. But was it?

The International Response
The European Union Observer Mission’s press conference sealed the fate of the Government. The international media, impartial Kenyan journalists, and foreign governments now believed that the Presidential election had been rigged by the Government. The Western ambassadors had met in mid-December to discuss their response to various outcomes of the election. They had all agreed that the most difficult result to deal with and the most dangerous for stability in Kenya would be if Kibaki were to secure a narrow victory in a Presidential election which Odinga and the ODM claimed had been rigged. Faced by such an eventuality, which in retrospect was all too likely, the ambassadors decided that they would recognize Kibaki’s victory and urge the ODM to seek redress through the courts. The European Union Oberver Mission’s declaration that it had clear evidence that some 47,000 votes had been awarded to Kibaki in Kieni and Molo alone, along with the implication that similar gross irregularities might be found in a considerable number of Central Province and Embu and Meru constituencies, however, ensured that their agreement would unravel. In fact, only United States Ambassador Rannenberger and the head of the World Bank mission followed the agreed plan and endorsed Kibaki’s victory on Monday, 31st December. Ambassadors from the European Union, by contrast, had already been informed of the EU Observer Mission’s conclusions, which were made public at the press conference on Tuesday, 1st January, 2008. As we have noted, however, the observers’ evidence cannot really be substantiated; the figures released by the ECK were far more in line with the voting in neighbouring constituencies, the votes cast in the Parliamentary and local government elections, and, indeed, with the previous pattern of voting in Kieni and Molo in 2002, 1997 and 1992. The Ambassadors, however, did not bother to consider such facts – anymore than the European Union Observer Mission did – and accepted the EU mission’s evidence as providing incontrovertible proof that the Government-camp had rigged the election. Led by the British High Commissioner, Adam Wood, the diplomats immediately began to question the legitimacy of Kibaki’s re-election and to imply that the ODM’s complaints were largely justified. The Government’s ham-fisted handling of the inauguration and the ban on live broadcasts, imposed by Minister of State in the Office of the President John Michuki, on Sunday evening, cutting off television coverage of William Ole Ntimama’s address to a press conference at ODM’s headquarters, The Orange House, seemed to confirm that the regime had something to hide.
The ambassadors were not alone in accepting the European Union Observer Mission’s assessment. Most international journalists rushed to claim that the election had been stolen by the Kibaki-camp. The most irresponsible coverage was provided in The Economist, which under the headline “twilight robbery, daylight murder,” reported that “the decision to return Kenya’s 76-year old incumbent president, Mwai Kibaki, to office was not made by the Kenyan people but by a small group of hardline leaders from Mr Kibaki’s Kikuyu tribe.” Describing Kibaki’s return as “a civil coup”, the report opined that “the real damage was done in Nairobi, by simply crossing out the number of votes as announced in the constituency and scribbling in a higher number.” The Economist noted that “monitors from the European Union saw tens of thousands of votes pinched in this way.” The magazine also implied sinister motives for the fact that only the KBC was permitted to broadcast Chairman Kivuitu’s declaration of the results and that Kibaki was hurriedly inaugurated in the twilight with only a few dozen loyalists in attendance. The journal’s editorial was not much more objective, claiming that “a small cabal of politicians almost certainly stole the result by fraud.” It pointed out that “in the parliamentary vote, President Mwai Kibaki’s ruling party was routed. Yet in the presidential vote Mr Kibaki emerged victorious at the last moment and had himself sworn in only a few minutes later, forestalling pleas from all sides – even from the head of the election commission he himself had appointed – for a pause to investigate mounting claims of malpractice.” Here again, The Economist was wrong. Parties supporting Kibaki’s re-election as part of the pro-Government coalition actually won the Parliamentary election, polling over 4 million votes, while the ODM-NARC alliance received only, 3,400,000 votes. In addition, pro-Musyoka Parliamentary candidates won another 600,000 and 1,500,000 votes went to non-alligned candidates representing small parties, making it impossible to state with confidence whether the pro-Kibaki or the pro-Odinga parties actually secured the more votes in the Parliamentary election. It is clear that Kibaki’s parliamentary forces were far from routed and might actually have won the Parliamentary contest by 500,000 votes or more.


The Parliamentary Election
The Party of National Unity (the PNU) was Kibaki’s political vehicle, but it contested less than two-thirds of the 210 Parliamentary constituencies (134 in all). The PNU’s most complete coverage was in Nairobi, where it had a candidate in all eight constituencies; Western Province, where it fought 22 out of 24 seats; and Central Province, where it contested 26 out of the 29 constituencies, leaving three in Kiambu to its coalition ally, KANU. Everywhere else, the PNU’s coverage was, at best, patchy. The party contested 13 of the 21 seats in Coast Province and 30 out of 36 in Eastern Province, but only 19 of the 49 seats in Rift Valley Province, 14 out of 32 in Nyanza (inclusing 13 of the 21 Luo seats but only one of the ten Gusii constituencies), and two out of 11 constituencies in Northeastern Province. By contrast, The Orange Democractic Movement fought 190 out of the 210 constituencies, leaving 16 seats uncontested in Central Province, three in Ukambani and one in Embu, to its NARC ally.
The Kibaki forces’ main problem in the Parliamentary election was that they failed to control the number of pro-Kibaki candidates in anyone constituency, whereas the ODM was far more effective at minimizing the split in its vote. Thus, the pro-Kibaki coalition brought together at least eleven parties – the PNU, KANU, FORD-Kenya, FORD-Asili, FORD-People, the Democratic Party (Kibaki old party), Sisi kwa Sisi, Safina, the Shirikisho Party, the KNC and KENDA, while only two parties were officially associated with the Odinga campaign, the ODM and Charity Ngilu’s NARC. As a result, the PNU found itself fighting its supposed coalition allies in virtually all the constituencies in which its Parliamentary candidates stood. By contrast, the ODM split the pro-reform vote with NARC in only 71 seats; in the vast majority of which NARC received few votes. This left the ODM Parliamentary candidate to carry the reform standard alone in 119 constituencies and NARC in two (Siakago and Ngilu’s Kitui Central). Fortunately for ODM, candidates for its NARC ally did not draw off many votes except in Ngilu’s home territory in Eastern Province and Luo-Nyanza, where it did not matter as the ODM won all the seats with vast majorities. In Nairobi, for example, although it sponsored candidates in six of the city’s eight constituencies, they won only 9,697 votes to the ODM’s 245,130. In Coast Province, the nine NARC candidates took only 8,141 votes away from the ODM, which contested every seat and secured 199,562 votes. The provincial totals for the two allies are listed below:

Province ODM only ODM and NARC NARC only Uncontested ODM Votes NARC Votes
Central 11 2 0 16 14,245 3,413
Coast 12 9 0 0 199,562 8,141
Eastern 24 8 2 2 59,016 40,519
Nairobi 2 6 0 0 245,130 9,697
Northeastern 9 2 0 0 70,319 2,927
Nyanza 11 21 0 0 915,896 154,290
Rift Valley 37 12 0 0 1,056,934 26,529
Western 13 11 0 0 415,705 70,942
Total 119 71 2 18 2,976,807 316,458

The competition between the two parts of the alliance probably cost the Odinga alliance only two or three seats. Overall the pro-Kibaki forces probably secured the most votes, winning, as a coalition, some 780,000 votes more than the combined ODM-NARC alliance. Kibaki’s forces won fewer seats, partly because of the multi-contested constituencies, but also because of the uneven size of Parliamentary constituencies. The 90 seats won by Kibaki on average had 24% more registered voters than the 101 seats won by Odinga. In other words, the results of the Parliamentary election do not contradict the Presidential declarations made by Chairman Kivuitu, declaring Mr Kibaki the narrow winner.

Conclusion
There were three essential problems,which provoked the ensuing furore: first, that the election was extremely closely contested and no-one can be really certain who won; secondly, the Electoral Commission of Kenya (unlike its Mexican counterpart in 2006) did not command sufficient institutional legitimacy to secure acceptance of its announcements; and, thirdly, politics in Kenya ever since independence has been based on the mobilization of rival ethnic coalitions. The December 2007 Presidential election was “a perfect storm” which brought to the fore all the suspicions and animosities, threatening the functioning of the state and Kenya’s very integrity as a nation.
It may now be impossible to unravel what actually happened in December 2007, but I hope that the above comments and accompanying power-point presentation will be useful to the Commission as it makes recommendations for changes in the electoral process.