The Kenyan Elections and the Future of Election Observing

In the early 1980s, international observers were frequently belittled as not credible evaluators of electoral processes. Critics of US foreign policy viewed them as props whose role was to legitimize otherwise problematic elections. Conflicting reports issued by observers of controversial Central American elections in El Salvador and Nicaragua reinforced the notion that the observation process was merely an extension of the partisan polemics that were a dominant feature of political debate during this period.

International election observing has changed a great deal during the past 30 years. Normative principles for the conduct of election observer missions have been applied consistently by credible intergovernmental and nongovernmental organizations. The UN and other international organizations recognize the constructive role that observers can play in supporting democratic transitions, in exposing fraudulent electoral processes, and in contributing to the peaceful resolution of armed conflicts. Indeed, international observers today are welcomed as a matter of course by governments, opposition leaders, and civil society organizations in diverse settings across multiple continents.

Standard observation practice now entails an assessment of the entire election process, whether through the placement of long-term observers or the dispatch of pre- and post-election missions or frequently both. International observers coordinate extensively among themselves and often with well-established domestic monitoring groups to ensure comprehensive coverage and a nuanced understanding of the local circumstances. And observers now rely on sophisticated data analytics to evaluate voter registration rolls, media fairness, and, most crucially, the tabulation of the votes following the closing of the polls.

The Case of Kenya

The August 2017 Kenyan elections have led to a revived critique of the outsized role that international observers have seemingly come to play. The bulk of the criticism was directed at the most prominent observer groups—including the European Union, African Union, Carter Center, and the National Democratic Institute—and relates to their post-election statements, which were generally issued within 72 hours of the closing of the polls. With different verbal nuances, the observers congratulated the Kenyan people on conducting a relatively peaceful election, noted that the process was still on-going, and urged the parties to use available institutions to process complaints. The Carter Center statement was typical: “As the process continues, it is essential that all Kenyans maintain their commitment to peace. If there are disputes about official election results, The Carter Center urges candidates and parties to use established legal channels to resolve them and to ensure that their supporters remain calm throughout the remaining electoral period.” Nonetheless, many Kenyans and others understood the overall tenor of these statements as endorsing the announced electoral victory of Uhuru Kenyatta, the incumbent president.

Almost a month later, the Kenyan Supreme Court, in response to a petition filed by opposition candidate Raila Odinga, ruled in a 4-2 decision that the election did not conform with Kenyan constitutional requirements and ordered a rerun of the election between the two principal candidates within 60 days. Per the Court’s ruling, the rerun took place on October 26. However, Odinga boycotted the event on the grounds that insufficient changes had been made to the composition of the election administration body, among other concerns. On November 20, the Kenyan Supreme Court rejected legal challenges to the rerun process and, on November 28, Kenyatta was sworn in for a second term as president of Kenya.

Despite the often-over-the-top criticism of their performance, the international observers in Kenya comported themselves in accordance with prescribed professional norms. They examined all aspects of the electoral process, critiqued specific elements, and suggested concrete reforms during the pre-election period and in their post-election statements. Moreover, in light of Kenya’s recent history of serious electoral violence, they appreciated that their presence formed part of an elaborate, multi-dimensional violence-prevention strategy. Thus, they sought to maximize their presence throughout the country during the campaign and on election day, while also tracking other key aspects of the process, particularly the vote tabulation.

The observers, of course, recognized that the use of early deployment and data analytics did not guarantee against attempted electoral manipulation, whether through violence and intimidation, faulty voter rolls, fake news, election-day administrative misfeasance, or the misreporting of results. Observers ultimately faced the daunting challenge of assessing a process that had problems but that also offered voters an opportunity to express their electoral choice through the ballot box. As is often the case, the precise cumulative impact of the identifiable flaws on the electoral outcome was impossible to calculate.

The Kenya case indeed highlights the distinction between the observer’s role of reinforcing credible local institutions and the role of local institutions in credibly adjudicating complaints. As external actors, the role of international observers is not to offer the ultimate judgement regarding the integrity of the electoral process. Accordingly, the observers in Kenya properly stated that the opposition should take their complaints to the judiciary and, in an effort to discourage violence, advised the public that the process was not complete until the judiciary ruled. The fact that some of the observers may have viewed the outcome of the August election, as confirmed by an independent statistical verification, as reflecting the preference of a majority of Kenyan citizens may be analytically interesting but is ultimately irrelevant. Given the standards that the international community has long accepted, the Supreme Court ruling is authoritative. And having observed the court proceedings, the observers appropriately celebrated this example of judicial responsibility and urged the parties to follow the Court’s order.

The Importance of Post-Election Statements

Given their admittedly tentative nature and significant message-shaping consequences, should observers rethink the value of issuing post-election statements? Although there remains the potential for controversy, such statements serve several positive purposes.

First, the statement may calm an otherwise tense environment by reinforcing the message that the process has been and remains under close international scrutiny. Second, the process of formulating a statement ensures that individual members of an observer delegation are all referencing the same consensus perspective and minimizes the prospect that impressions formed from a narrow set of observations assume more influence than warranted. Third, failure to issue a statement may create a communications void that allows for more extreme voices to undermine a credible election or to legitimize a manipulated process. Thus, preliminary statements should remain integral to election observation operations even as extreme care must be taking in their formulation.

The example of a Supreme Court bucking tradition and ruling against an incumbent government sets an important precedent for the primacy of the rule of law in a democratic society. However, international observers may not always applaud the decision by a host country Supreme Court. Imagine a brazenly manipulated election in which the Supreme Court upholds the outcome favoring an incumbent candidate. Thus, even as observers give due deference to local institutions, their long-term credibility depends on their willingness to criticize publicly electoral manipulation that is aided and abetted by corrupt, non-independent institutions, including election commissions and even Supreme Courts. Without giving voice to such concerns, observers will again be perceived as naïve shills whose presence undermines, rather than promotes, international solidarity among democracy activists.

Larry Garber, a former senior USAID official, is the author of Guidelines for International Election Observing, which was published in 1984, and has organized or participated in election observer missions in more than 20 countries. Photo by Amani Nation on Unsplash.