This post by Prof. Nic Cheeseman first appeared in The Nation on 28 November
The Supreme Court approved President Uhuru Kenyatta’s October 26 victory, but it is still too early to fully evaluate the court’s impact on the elections, and the impact of the elections on the Court.
What we can do now is to look back on the role played by international election observers, who have received a great deal of criticism in Kenya.
A week or so ago, I published a piece on this topic in the Washington Post with Todd Moss and Jeffrey Smith.
The article was designed to continue the debate about what role international monitors should play, and how they can be strengthened.
However, in the rush to edit the piece down to the required word length many important points were cut.
As a result, some people have asked for more information on our argument, others have requested further elaboration on the kinds of reforms that could be introduced, and others still have complained that the analysis did not do justice to the complex challenges that observers face.
In response, I shall use this column to try and set the record straight.
What are observers to do?
One of the main challenges for observation teams is that people tend to exaggerate their power.
Ahead of the elections, many Kenyans invested considerable confidence in the ability of missions from the Carter Center and the European Union.
But the rules that observers must play by, if they are not to get into trouble with both their employers and the governments whose elections they oversee, means that there is only so much they can do.
Most obviously, international observers operate in foreign states at the pleasure of the host government, and so have to be particularly careful when alleging rigging.
There are plenty of countries that do not allow foreign teams in – such as Zimbabwe, from where I am writing – and so observers must protect their reputation in order to maintain access.
As a result, monitors often find it difficult to make strong statements when they suspect foul play but cannot prove it.
This situation held in Kenya following the election of August 8, when the opposition quickly pointed to missing forms and electronic irregularities as evidence of rigging, but hard evidence of exactly how many votes had been added or lost was not available.
The Supreme Court interpreted the failure of the Independent Electoral and Boundaries Commission (IEBC) to provide information and access to its servers to imply malpractice, even though it lacked concrete evidence of the extent of rigging.
This was an assumption that the Carter Center and the European Union were simply not in a position to make.
Similarly, it is not well-known that observers have no right to directly intervene in elections, even to stop abuses that they directly witness.
Instead, they are supposed to record and report malpractice – leaving intervention to domestic institutions such as the electoral commission and the police.
This is a particularly weak position when we factor in that observers have no power of enforcement – they can make recommendations in their reports, but they have no financial or judicial leverage with which to ensure they are acted upon.
That role falls to domestic civil society and international donors.
As a result, there is a significant discrepancy between the hope and faith that opposition parties place in international observers and their capacity to deliver.
What did observers do well?
Many people have been left with the impression that the teams from the European Union and the Carter Center let the Kenyan people down in 2017, not because they were worse than any other groups, but because people expected more from them.
Most of the times that I have heard this argument rolled out, it has rested on three foundations.
The first is that observers did not condemn the August 8 elections, whereas the Supreme Court did.
The second is that observers did not do their job properly because they stayed in Nairobi, did some shopping, and then went back to their comfortable jobs in Europe and North America.
The third is that observers always do the same thing, letting the bad guys off the hook.
I have already explained why the first criticism misunderstands the power and role of international election observation.
The second criticism is also misguided.
The better and more thorough international missions, such as the Carter Center and the European Union, have a long-term component, placing observers in the country months ahead of the polls.
They also hire political experts who understand the country’s political history and can explain the context of the elections and the ways in which they tend to be rigged.
It is also incorrect to suggest that observers do not travel outside of the capital city.
Almost all monitoring teams locate their staff in polling stations across the country in a reasonably representative way, and so can report on both the rural and urban experience.
The notion that international observers always do the same thing is also clearly false.
Kenyans only have to think back to 2007, when it was the European Union that called into question President Mwai Kibaki’s victory, citing figures from the Molo and Kieni constituencies.
It is also clear that international teams also adapted their approach in 2017, with both the Carter Center and the European Union making strong statements ahead of the “fresh” election on October 26.
These raised concerns about the lack of reforms within the electoral commission and the treatment of the Judiciary, and made it clear that the election was unlikely to be credible.
Thus, while the 2017 elections highlight a number of problems with the system of selection observation, I see most of these as relating to the way election observation works, rather than the people who do it and the decisions that they make.
What can be improved?
We now face the question of how election observation can be improved.
We need to do this for two reasons. On the one hand, a survey conducted by Ipsos Kenya in mid October 2017 found that a majority (59 per cent) of Kenyans want international observers to monitor future elections.
On the other hand, half of all respondents in the same survey agreed that “they make no difference when it comes to stealing votes”.
Thus, while observers are clearly needed, their reputation needs to be strengthened. How can this be done?
BURDEN OF PROOF
One obvious point is that observers can do a better job of communicating the limits to their powers.
But they cannot do this alone – the media, and the way in which observers statements are reported, is also a problem.
During the 2017 elections in Kenya, a number of observer reports that highlighted positive and negative aspects of the polls were reported as having given the process a “clean bill of health”.
However, while good Public Relations is important it will not be enough. The role of observers also needs to be bolstered.
There are two ways in which this can be done.
The first is to change the burden of proof, so that monitors can ask governments to demonstrate that processes are robust and transparent when they have concerns – even if these have not been proven.
A second related change would be to have much stronger pre-electoral statements that flag up issues of concern and highlight key challenges in a much stronger way than tends to occur at present.
Of course, one implication of this more tough approach is that in some cases observers may be asked to leave, or not be invited back – but this might not be such a bad thing.
If being present at an election means legitimising a deeply problematic process, staying away may be better.
International monitors could also take longer to issue their first post-election statements.
We know that in many cases election day looks great and the problems emerge halfway through the counting process.
It therefore makes sense to leave any statement until the counting is near complete – and to go to greater lengths to stress that any comments made at this stage are preliminary and must not be taken or reported as a final evaluation of the quality of the polls.
All of these reforms would represent small but significant improvements, but they will count for little if observers do not have the funding, skills and experience needed to actually detect electoral fraud.
At present, they are managed by good people with considerable experience. But they are also operating in a rather old-fashioned way.
As is traditional, the European Union team placed people in polling stations across the country.
Academic research suggests that this has the effect of reducing election rigging in the polling stations in which observers are present, but that this has little impact on the quality of the overall rigging because the malpractice is simply moved elsewhere.
A better use of these staff positions would therefore be to establish a high quality team that can interrogate the electoral register and voting and counting process.
In 2017, the European Union had a data analyst as part of the team, but not a set of experts on biometric technology and digital electoral processes.
Yet most of the problems with the election related to the transmission of forms, and the need to evaluate claims of hacking and the fabrication of results.
The implication is clear: Detecting rigging in the future will require monitors to adapt.
As elections change, so must election observers.