THE FALLACIOUS VOTE © 2018 Kenya National Commission on Human Rights
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Kenya National Commission on Human Rights TH E FALLACIOU S VOTE APRIL, 2018 THE FALLACIOUS VOTE © 2018 Kenya National Commission on Human Rights. ISBN: 978-9966-040-55-8 COPYRIGHT CONTACT INFORMATION The contents of this publication Kenya National Commission on Human Rights may be freely used and copied Head Office, for educational and other non- P.O. Box 74359-00200, Nairobi, Kenya commercial purposes, provided 1st Floor CVS Plaza, Kasuku Rd off Lenana Road, that any such reproduction [email protected] / [email protected] is accompanied by due www.knchr.org acknowledgement of the Tel: +254-020-3969000 authors of this publication. KNCHR hakiKNCHR KNCHR 22359 © KNCHR, 2018 KNCHR would appreciate receiving a copy of any materials in which information from this report is used. COVER DESIGN AND LAYOUT Intercode Solutions / Email: [email protected] / www.intercode.co.ke PRINTED IN KENYA Concept Branding Limited The Fallacious Vote i All sovereign power belongs to the people of “Kenya and shall be exercised only in accordance with this Constitution.” ~Article 1, Constitution of Kenya, 2010. ii www.knchr.org Acknowledgements v Executive Summary 1 List of Acronyms/Abbreviations 5 CHAPTER 1 Introduction 7 1.1 Contextual Background 7 1.2 Methodology and Scope 10 CHAPTER 2 The Legal Background to Party Primaries 12 2.1 Introduction 12 2.2 National Legal Framework on Elections 15 CHAPTER 3 Analysis of Key Findings 19 3.1 Introduction 19 3.2 Bribery and Manipulation of Voters 20 3.3 Incidences of Violence 25 3.5 Missing Names 30 3.6 Lack of Sufficient Voting Materials 33 CONTENTS 3.7 Late Opening and Early/Late Closing 36 3.8 Provision of Security 37 3.9 Harassment and Duress 38 3.10 Intimidation and Violence against Marginalized Groups 40 3.11 Absence or Manipulation of Political Parties’ Membership Lists 44 3.10 Misuse of Public resources 47 CHAPTER 4 50 Summary of Actions Taken 50 4.1 IEBC 50 4.2 Political parties 50 4.3 Police 51 The Fallacious Vote iii CHAPTER 5 Recommendations 53 5.1 The Political Parties 53 5.2 The Office of the Registrar of Political Parties (ORPP) 55 5.3 The Independent Electoral and Boundaries Commission (IEBC) 56 5.4 Security Agencies 57 5.5 Media 58 5.6 The Office of the Director of Public Prosecutions (ODPP) 59 5.7 Working Group on Chapter 6 of the Constitution of Kenya, 2010 59 5.8 The Electorate 60 CHAPTER 6 Conclusion 61 List of Figures Figure 1: Incidences of political party nomination anomalies, 2017 19 Figure 2: Incidences of b per county 21 Figure 3 Incidences of voter bribery per political party 25 Figure 4: Incidences of Violence per county 26 Figure 5 Incidences of violence per political Party 30 CONTENTS Figure 6: Incidences of missing names per County 31 Figure 7: Incidences of Missing names per Party 31 Figure 8: Lack of sufficient voting materials per county 33 Figure 9: Incidences of harassment and duress per county 39 iv www.knchr.org Acknowledgements The Kenya National Commission on Human Rights (KNCHR) salutes the citizens of Kenya for their participation and enthusiasm in this great milestone that did set the ground for the election of our Country’s leaders for the next five years (2017- 2022). Despite the challenges encountered, eligible voters remained faithful to the process by coming out in large numbers to exercise their constitutional right to vote. The Commission remains indebted to the 84 monitors and the staff deployed across the Country whose zeal and commitment shaped the architecture and content of this report. The commitment to the human rights agenda demonstrated in the project attests to a desire to continue expanding the democratic space in this country. We recognize the gigantic role played by the political parties in coordinating the respective primaries. The commitment to have this important phase of the electoral cycle actualized and the putting in place of the framework to facilitate their members to participate in the process was no mean feat. Special mention to the leadership and strategic direction offered by the KNCHR Chairperson, Commissioners and the Commission Secretary. Through their guidance, the technical staff were able to steer the critical process through open and flexible thinking spaces from where critical decisions that informed this monitoring process were drawn from. The report would not have been a success without the immense planning, input, support and participation of KNCHR staff who were committed to early mornings and long nights at the KNCHR Elections Monitoring Hub in order to ensure that information from the regions was analyzed and posted. This report is aptly dubbed “The Fallacious Vote”, and it’s a reflection of the continuous efforts and milestones achieved in steering the country towards compliance with human rights standards in political processes. The Commission further commends the media for objectively keeping the country abreast with the proceedings and their educative role they played in empowering Kenyans with knowledge on electoral processes and reforms. They remain a The Fallacious Vote v critical force whose work can build or break a nation and we thus encourage them to remain vigilant in safeguarding Kenya’s democracy. Last but not least, we acknowledge and appreciate the United Nations Development Programme (UNDP) and the Office of the High Commissioner for Human Rights (OHCHR) who have supported this process in kind and deed. Their visits to the KNCHR Elections Monitoring Hub and words of wisdom were a show of trust to the processes the Commission undertakes and our resolve towards the promotion and protection of human rights in Kenya. This was the beginning of a crucial process in an electoral cycle that was to facilitate inauguration of top leadership in Kenya in the next few months and thus it took the input of all to ensure that the end result was justifiable and adhered to the rule of law. It is in this light that we say to all who contributed to this process a big THANK YOU. vi www.knchr.org Executive Summary At the preliminary level, the question remains. Did you actualize your constitutionally guaranteed right to vote during the recent political party nominations exercise? Do you understand the significance of party primaries as a milestone towards solidifying good governance in the electoral reforms in Kenya? The sad answer is “No” or at best “Yes”. Nevertheless, this report explores what those who participated in party primaries experienced and further suggests mechanisms that would be put in place to eliminate nasty experiences. Electoral reforms in Kenya envisaged a process that would reflect the aspirations of citizens as key decision makers towards the leadership of the country through the power vested upon them by the Constitution of Kenya (CoK). Article 1 provides that all sovereign power belongs to the people. One of the key provisions that brings to life this power is the constitutionally guaranteed right to make political choices that are actualized by the right to vote as entrenched in Article 38 (3) (b) of the Constitution of Kenya, 2010. The exercise of these powers culminates to the determination of how citizens are governed over five-year term of each National and County leadership cycle. It is thus critical that citizens prioritize participation in each of the legally stipulated processes that lead up to the outcome of the general elections. This includes the right to form a political party, participate in its activities and also vie for a position in any political party of which they are members. The same Constitution of Kenya, 2010 has established institutions to oversee and act as watchdogs over the exercise and enjoyment of these fundamental rights. Thus the KNCHR obtains its mandate to monitor the adherence to human rights standards and principles in varied governance processes, key among them the elections in Kenya. Since its inception, KNCHR has been at the forefront in advocating for a Human Rights Based Approach (HRBA) to elections in order to promote accountability of leadership which can only be achieved through enhanced public participation mechanisms. It is in this regard that KNCHR has over the years undertaken to engage in The Fallacious Vote 1 electoral reforms processes through voter education, preparation of advisories, litigation, monitoring and observation. The Fallacious Vote, is thus a report summarizing key findings and recommendations from 2017 political party primaries monitoring which took place between April and May 2017. The information was gathered from 33 Counties that KNCHR had mapped out as potential hotspots based on security trends and information. KNCHR recruited 84 monitors who were taken through intensive training and sensitization on key human rights election-related issues and thereafter deployed to monitor the electoral cycle. The KNCHR lauds and notes the great enthusiasm with which the electorate participated in the political parties primaries as was reflected in the turnout at various polling centers despite the myriad and sudden cancellations or postponements by their respective political parties. This, according to KNCHR, is a positive indicator of an electorate that has over the years acquired greater understanding and knowledge which has empowered them to actively participate in this important decision making process. However, KNCHR was concerned about the lack of preparedness demonstrated by political parties in the party primaries despite having ample time, based on the timelines that had been gazzetted in advance by the Independent Electoral and Boundaries Commission (IEBC). The gaps brought about by this unpreparedness greatly affected the credibility and integrity of the entire exercise; Key among these issues included the lack of party registers and adequate voting materials. Therefore, these amounted to election offences as stipulated under the Election Offences Act, 2015 and political parties ought to be held liable for election offences committed.