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Kenya General Elections, 2017 FINAL REPORT REPUBLIC OF KENYA General Elections 2017 REPUBLIC OF KENYA European Union Election Observation Mission FINAL REPORT General Elections 2017 January 2018 This report contains the findings of the EU Election Observation Mission (EOM) on the general elections 2017 in Kenya. The EU EOM is independent from the European Union’s institutions, and therefore this report is not an official position of the European Union. KEY CONCLUSIONS OF THE EU EOM KENYA 2017 1. The Kenyan people, including five million young people able to vote for the first time, showed eagerness to participate in shaping the future of their country. However, the electoral process was damaged by political leaders attacking independent institutions and by a lack of dialogue between the two sides, with escalating disputes and violence. Eventually the opposition withdrew its presidential candidate and refused to accept the legitimacy of the electoral process. Structural problems and specific electoral issues both need to be addressed meaningfully to prevent problems arising during future elections. 2. Electoral reform needs to be carried out well in advance of any election, and to be based on broad consensus. The very late legal amendments and appointment of the leadership of the Independent Electoral and Boundaries Commission (IEBC) before the 2017 elections put excessive pressure on the new election administration. 3. Despite efforts to improve the situation, there was a persistent lack of trust in the IEBC by the opposition and other stakeholders, demonstrating the need for greater independence and accountability as well as for sustained communication and more meaningful stakeholder consultation. There was improved use of technology, but insufficient capacity or security testing. Technology cannot replace trust. 4. The 8 August general elections were competitive with on average nearly eight candidates per seat being elected. Campaigning was largely free but marred by politicians’ attacks on state institutions and by the misuse of state resources at national and local levels. Polling on 8 August was largely peaceful and well conducted but there were problems with results transmission, tallying and transparency. Incumbent President Kenyatta of the Jubilee Party was declared the winner by a margin of 1.4 million votes. 5. The Supreme Court’s annulment of the August presidential election was historic in ruling against an incumbent president and for focusing on the process of the election (rather than the result). The ruling appeared to prompt improvements in results transmission, verification and transparency in the fresh presidential election in October and thus raised standards of public service. However, the political environment deteriorated sharply. 6. Disturbances from August to December 2017 involved some disproportionate actions by security forces (including the use of live fire), costing dozens of lives and also reportedly involved sexual violence. Criminal elements and gangs also contributed to the violence. There was an increasingly ethnic dimension, with ethnic profiling and threats observed in different parts of the country. 7. Jubilee’s unilateral amendments to electoral legislation during the fresh election, harsh rhetoric against the judiciary and acts of intimidation against civil society were highly antagonistic and not consistent with international commitments and good practice for democratic functioning. 8. Supporters of the opposition National Super Alliance (NASA) assaulted and intimidated polling staff, attacked IEBC offices, and disrupted electoral preparations. This is illegal and anti-democratic. 9. The judiciary was subject to increasing pressure. It was extremely concerning that the day before the fresh presidential election a case seeking postponement of polling could not be heard by the Supreme Court due to a lack of a quorum. This deepened concerns of political intimidation of the judiciary. 10. The fresh presidential election in October was generally well conducted, with full results data and forms made available promptly. Following NASA’s boycott, there was a severely reduced turnout and a landslide victory for Jubilee. 11. Key civil society organisations and networks were subject to intimidating state actions just before each of the two deadlines for lodging presidential petitions (in August and November). The media provided increasing scrutiny of the process, but could not always report freely and attempts were made to restrict live coverage of disturbances. 12. The newly elected Parliament does not comply with the two-thirds gender principle prescribed by the Constitution, although there was a slight increase in the number of women elected. 13. Stakeholders referred to the need to address deep-rooted structural issues of exclusion and the “winner- takes-all” system of government in order to prevent future electoral problems and the risk of violence. The EU election observation mission (EOM) offers 29 recommendations for reform. These include: taking actions to provide for the resilience of independent institutions involved in elections, inclusive legal reform, strengthening of the IEBC’s independence and accountability, improved ICT arrangements and IEBC oversight, a legal requirement for a comprehensive results framework, and review of the electoral system considering impact on the political participation of women and inclusivity. TABLE OF CONTENTS KEY CONCLUSIONS OF THE EU EOM KENYA 2017 .............................................................................................................. 2 I. EXECUTIVE SUMMARY AND PRIORITY RECOMMENDATIONS .................................................................................... 4 II. EU EOM FULL LIST OF RECOMMENDATIONS .............................................................................................................. 8 III. EU EOM METHODOLOGY .......................................................................................................................................... 11 IV. POLITICAL BACKGROUND ......................................................................................................................................... 11 V. ELECTORAL REFORM PRIOR TO THE 2017 GENERAL ELECTIONS .............................................................................. 12 VI. LEGAL FRAMEWORK…………………………………………………………………………………………………………………………………………….13 VII. ELECTORAL DISPUTE RESOLUTION (EDR) .................................................................................................................. 15 VIII. ELECTION ADMINISTRATION .................................................................................................................................... 18 IX. VOTER REGISTRATION AND THE DELIMITATION OF CONSTITUENCIES .................................................................... 22 X. PARTY PRIMARIES AND THE REGISTRATION OF CANDIDATES .................................................................................. 25 XI. THE FIRST CAMPAIGN PERIOD FOR THE GENERAL ELECTIONS ................................................................................. 26 XII. 8 AUGUST ELECTION DAY AND RESULTS PROCESS ................................................................................................... 27 XIII. REACTIONS TO THE AUGUST RESULTS AND THE CAMPAIGN PERIOD ...................................................................... 30 XIV. 26 OCTOBER ELECTION DAY AND RESULTS PROCESS ............................................................................................... 33 XV. REACTIONS TO THE OCTOBER RESULTS .................................................................................................................... 35 XVI. MEDIA AND SOCIAL MEDIA....................................................................................................................................... 37 XVII. CIVIL SOCIETY AND CITIZEN OBSERVATION .............................................................................................................. 42 XVIII. PROSECUTION OF OFFENCES RELATED TO ELECTIONS ........................................................................................... 43 XIX. POLITICAL FINANCE ................................................................................................................................................... 44 XX. PARTICIPATION OF WOMEN ..................................................................................................................................... 46 XXI. PARTICIPATION OF PERSONS WITH DISABILITIES ..................................................................................................... 47 ANNEX 1 - EU EOM STATISTICAL ANALYSIS OF 26 OCTOBER POLLING AND RESULTS DATA ............................................ 48 ANNEX 2 – EU EOM RECOMMENDATIONS CHART (WITH RELATED INTERNATIONAL COMMITMENT/STANDARD) ....... 53 ANNEX 3 – THE ELECTIONS IN NUMBERS AND CHRONOLOGY OF EVENTS ...................................................................... 66 ANNEX 4 – MAP OF 8 AUGUST 2017 PRESIDENTIAL RESULTS .......................................................................................... 70 ANNEX 5 – MAP OF 26 OCTOBER 2017 TURNOUT ........................................................................................................... 71 ANNEX 6 - LIST OF ACRONYMS ......................................................................................................................................... 72 An audio podcast version of the
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