The 2020 Kenyan elections may still be litigated in the courts of public opinion, but they offer vital lessons to Tanzanian law reforms, which are still in the initial stages.
The most significant development in the 2020 Kenyan elections was the quest of Kenyan politicians to control and manage the elections through their proxies.
Before the Kenyan 2020 elections, there was a development of what was known as BBI (Building Bridges Initiatives), dubbed as the golden handshake between the then President Uhuru Muigai Kenyatta and a political rival, Raila Amolo Odinga.
The BBI objectives targeted enshrining inclusiveness and social cohesion and ensuring elections were free, fair and verifiable. The BBI wedged a rift between two factions in the ruling coalition that Uhuru Kenyatta led on one side and William Samuoi Ruto on the other.
Mr Ruto, who was by then the deputy president, perceived BBI was geared to pave the way for the coronation of Mr Odinga as the next president of Kenya at his expense. Mr Ruto and his closest allies’ worst fears were confirmed when four of Raila’s allies were appointed to be the commissioners in the IEBC (Independent Elections & Boundaries Commission).
The appointment of Raila-aligned commissioners became a focal point of presidential election disputes when the chairperson of the IEBC declared William Samuoi Ruto had won the presidency. At the same time, the BBI inspired four commissioners to call a press conference at the Nairobi Serena Hotel to throw cold water in that declaration, claiming they were not involved before it was announced.
While massaging his presidential election loss, Raila took a swipe at the chairperson of the IEBC for dictating against the majority of the commissioners who had denounced the declaration that had catapulted Mr Ruto to the presidency.
Raila’s staple grouse was the IEBC should have respected the four commissioners when they made it abundantly clear to the chairperson they were not involved in the appraisal and tabulation of the results in various presidential election forms.
Later, the Supreme Court of Kenya ruled that the BBI commissioners had no powers to make counter-declarations and said whatever the four commissioners did was illegal. The Court confirmed with finality that Mr William Samuoi Ruto was duly elected president of Kenya.
While the BBI commissioners may have eclipsed the whole election, it is in the Kenyan elections law where Tanzania has much to learn and adopt.
Kenyan elections permit independent candidates, and polling agents in every stage are allowed to do their vigilante jobs, whereas in Tanzania, independent candidates are not allowed, and it is a tug of war between CCM-affiliated DEDs ( District Executive Directors) and the polling agents. Tanzanian election supervisors are civil servants whose ascension to those positions is based on loyalty to the ruling party, CCM. As a result, they are under pressure to flip the elections in favour of CCM.
Kenyan elections are professional, transparent, and accountable, whereas in Tanzania, the whole election laws aim to fathom opaque, unaccountability, and lack of credibility.
The Kenyan Election Commission, the IEBC, is what it says it is: the secretariat is very independent because no civil servants or active judges, House Speakers or MPs are allowed to be employed in the commission. This aspect is essential because it removes the burden upon the shoulders of the civil servants and their ilk from upending the electorate’s will to appease the ruling party that employs them.
The Kenyan election law requires the IEBC to publish the forms from all polling stations across the country in its digital portal to support the tallying and tabulation of the results in the constituencies.
In Tanzania, the NEC (National Election Commission) is only required to publish constituency results, of which the electorate can not verify their basis since they are not supported by polling station results for verification purposes. Hence, the results declared by the NEC are not verifiable. They could even be an offshoot of doctored polling station results!
Under Kenyan law and precedent decisions of the Supreme Court of Kenya, elections supervisors must permit polling agents to fully participate in their verification roles of the election process, while in Tanzania, the law allows agents to assume their duties. Still, the consequences of undermining them are not outright clear!
In Kenya, if there is evidence that election supervisors have disabled the polling agents, the results from those polling stations are revoked, and an order to vote again is issued. No such checks and balances are available in Tanzania’s election laws.
Under Kenyan law, all polling agents must sign the election forms and a copy of the same form after it is filled according to law, it is issued to all polling agents, and that polling station form becomes a basis of legal disputes if it is not captured in the IEBCC public portal. Such transparency and participation of all stakeholders in the elections is unthinkable in Tanzania. Regrettably, the current election law reforms have not addressed this anomaly.
Under the Kenyan constitution, all completed election forms from polling stations and constituencies are transported by the latest technology to the IEBC public portal and are being used to provide provisional election results subject to further certification no sooner the hardcopies of the forms arrive at the IEBC where the secretariat makes a second comparison.
This is important because it provides more assessment against tampering with election forms, a case that Tanzanian elections have been accused of since the reintroduction of multiparty democracy from 1995 to 2020. Of more concern, the proposed election reforms in
Tanzania is silent in polling station transportation from the polling booths to the NEC public portal, indicating that election laws reform intends to retain the status quo unscathed!
Tanzanian election reforms have no intention to replace manual transportation of the election forms from the polling booths to the constituencies and then to the NEC headquarters with the latest technologies. There are no legislative efforts to create a public portal where voters can appraise whether their votes were captured in the NEC public portal by comparing their polling booth form with those uploaded to the NEC public portal.
There have been judicial efforts by the Tanzanian Court of Appeal to disempower the electorate from litigating the election disputes, and the election candidates were thrust as the only stakeholders. In the decided case of Batilda Burian Salha versus the AG & Godbless Lema, the Court had questioned why the parliamentary elections loser, Batilda Burian, did not contest her defeat and declared that from that day, only election candidates can dispute election verdicts, not the registered voters as the election law conspicuously dictates!
Under the current election law of Tanzania, registered voters are empowered to dispute election outcomes, rendering that the Court ruling has usurped the powers of Parliament to legislate laws.
As if this was not bad enough, the constitutional law reform known as the Warioba Commission adopted the principle established by the Appeals Court of excluding voters from litigating in courts against election results. The constitution identifies Tanzanians as having supreme powers to determine the nation’s destiny.
Still, the judiciary and the executive have made headway to upend that constitutional principle, leaving voters mere spectacles in determining the nation’s ultimate destiny. Voters’ constitutional powers are increasingly shifted and hurled to elitist election candidates whose interests are not always at par with the electorate.
Lack of technological input in the transportation of election results in the NEC public portal from polling booths and constituencies culminates in unnecessary delays in declarations of results. While Kenyan constituent outcomes are known a few hours after the closure of the polling stations in Tanzania, it consumes days, if not weeks, before the results are known.
NEC always hides her insidious acts behind the shrubbery of the country’s enormous and manual transportation bottlenecks but has never revealed why the latest technologies are not deployed to ease and speed the transportation of the elections results to be a matter of hours, not days or weeks.
The electorate suspects the refusal of the Tanzanian election laws to categorically instruct NEC to transport election-completed forms from the polling stations and constituencies digitally to provide provisional results to the voters is deliberate to ensure election riggers are afforded sufficient time to overthrow the will of the electorate well captured in those forms.
The Way Forward
While the Kenyan election law is imperfect, Tanzania must admit to lagging in plugging holes that condone massive rigging.
Tanzanian past leaders since independence have been decrying the lack of leadership ability, costing the nation her rightful place in global development. Still, strangely, election laws favouring CCM have never been given the surgery they deserve.
Application of the latest technologies in the transportation of completed filled election forms should be stated in these election laws.
Duration from when the election was finished to the announcement of the result must not exceed three working days. Voters must retain their role as the vanguards of the election. That role must not be relinquished to elitist election candidates whose interests may not necessarily coincide with those of the electorate.
NEC must have an independent commission that employs no civil servant to retain its independence aura vigorously.
The employment of the elections selection Committee is a thorn in the flesh, even in Kenya. Currently, the opposition is threatening to boycott the next general elections unless their recommendations are included.
The selection committee must be political parties’ playground because we claim to be a multiparty democracy. If that is true in substance, all registered political parties must have one representative.
On that frontier, the only thing we can learn from Kenya is that unless all registered political parties have their own trusted eyes in the selection committee, the whole election is flawed, abinitio.
While there are elitist suggestions that elections be conducted electronically, we strongly feel that is akin to opening a can of worms because manual voting is verification while digital voting is almost impossible to verify and is prone to electronic hacking to distort the voice of voters loudly spoken in the ballot boxes.
Electronic voting will subject our democracy to the peril of hackers. A scenario abodes omen to every peace-loving person when voters know their votes were hacked, and mercenaries of hire are descending upon them.
Polling agents’ access and executing their onus uninterrupted must also be interwoven in evaluating the integrity of the election process. Where their role when established was impeded, that ought to be the most sufficient ground to overturn the election in the affected areas.
Tanzanian election laws reform must try to address the problems and deficiencies experienced from 1995 to 2020 to justify the exercise rather than incurring lots of expense to craft laws that have zero chance of solving election problems.
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