Subject: Kenyan Elections
From: "Ken Wollack" <[email-masked]>
To: <[email-masked]>
Date: Thu, 10 Aug 2017 17:48:21 -0400

Following is the statement on the August 8 Kenyan elections that the NDI
observation mission released at a Nairobi press conference earlier today.
This corresponds to similar statements released by other observer groups.

Best regards,

Ken

Kenneth Wollack
President
National Democratic Institute
455 Massachusetts Ave., NW, 8th Floor
Washington, DC 20001
202-728-5500 (Tel)
888-875-2887 (Fax)
email: [email-masked]
website: www.ndi.org

PRELIMINARY STATEMENT OF THE

NATIONAL DEMOCRATIC INSTITUTE’S

INTERNATIONAL ELECTION OBSERVER MISSION

TO KENYA’S AUGUST 8, 2017, ELECTIONS

Nairobi, August 10, 2017

This preliminary statement is offered by the National Democratic
Institute’s (NDI) election observer delegation to Kenya’s 2017 general
elections.

The 30-member international and bipartisan delegation with members from 12
countries was co-led (alphabetically) by: Dr. Aisha Laraba Abdullahi,
former Commissioner for Political Affairs of the African Union; Hon. Karen
Bass, Ranking Member, U.S. House of Representatives Foreign Affairs
Subcommittee on Africa; Professor Attahiru Jega, former Chairman,
Independent National Election Commission of Nigeria; Justice Yvonne
Mokgoro, former Justice of the Constitutional Court of South Africa; Hon.
Christine Todd Whitman, former Governor of New Jersey; NDI senior associate
and director of electoral programs Patrick Merloe; NDI senior associate and
director for Southern and East Africa, Keith Jennings. Through this
delegation, NDI seeks to: express the international community’s interest in
and support for credible, peaceful elections in Kenya; provide an accurate
and impartial report on the character of the election process to date; and
offer recommendations to improve future electoral processes.

The delegation visited Kenya from August 3-10, 2017.  It builds upon the
findings of NDI’s pre-election assessment conducted from April 3-7 and
benefited from the ongoing analysis of political developments and the
broader work of NDI’s Kenya office. The delegation conducted its activities
in accordance with Kenyan law and the Declaration of Principles for
International Election Observation and collaborated with other
international observer missions that endorse the Declaration. NDI also
provided technical assistance to Kenyan election monitoring organizations,
assisted 5,000 women who contemplated competing in the election as
candidates from various parties and as independents, and conducted
political party poll watcher trainings.

The delegation is grateful for the warm welcome and cooperation it received
from all Kenyans with whom it interacted, including election officials,
candidates, party leaders, citizen election monitors, religious leaders,
and civic activists. NDI does not seek to interfere in the electoral
process and recognizes that it is the Kenyan people who will ultimately
determine the credibility of their elections.

The delegation would like to stress that this statement is preliminary in
nature. The official results are yet to be finalized, and electoral
challenges, if any, are yet to be lodged and adjudicated. NDI will continue
to monitor electoral developments and will issue further statements, if
needed, and a final report. The Institute expresses its appreciation to the
U.S. Agency for International Development, the National Endowment for
Democracy, the U.K. Department for International Development, and the
Danish International Development Agency, for their support to NDI’s
activities related to Kenya’s 2017 elections.

   1.

   SUMMARY OF ELECTION DAY OBSERVATIONS

The people of Kenya made their voices heard in a peaceful fashion through
credible election processes on August 8. Candidates and their supporters
should see the results tabulation process through to its conclusion in an
equally peaceful manner, while documenting any challenges they might
consider taking before the courts. Electoral authorities should be allowed
to transparently complete the determination of the presidential outcome
within the seven-day constitutional timeframe.

Voters turned out in very large numbers, and they waited patiently in long
lines to cast their votes. The Independent Elections and Boundaries
Commission (IEBC) delivered well-managed polls, even though it faced
serious challenges in the few months it had leading to the vote. Late
openings in many polling places contributed to waits but did not appear to
dent the voters’ resolve. Electronic voter check-in technology worked
smoothly in the vast majority of polling places, and election officials
worked long hours with determination to carry out their duties according to
law.

Women participated in large numbers on election day and were well
represented among the IEBC’s staff, political party agents, and Kenyan
election observers. Party agents from competing sides and independent
candidate agents, as well as nonpartisan election monitors, were present at
the vast majority of polling locations observed. Security officers were
deployed at polling locations as well. News media (including Kenyan and
international, traditional and digital) provided robust coverage of
election developments, which contributed to public awareness and helped
dispel rumors.

Electronic transmission of polling station results allowed the IEBC to
present the aggregated presidential vote at the national level, though
digital display of the corresponding declaration of results forms (Form 34A
for each polling station) was significantly delayed, contrary to
expectations. Their display would allow candidates to compare copies of the
forms provided to their agents at polling stations with the national
database in order to confirm data and/or identify inconsistencies. The IEBC
pledged that no final presidential outcome will be announced until all
electronically transmitted copies of Forms 34A and corresponding Forms 34B
from the constituency tally centers are reconciled with their original
signed copies. This demonstrates the importance of open electoral data for
safeguarding electoral integrity.

The National Super Alliance (NASA) alleged on August 9 that the IEBC
database was hacked on election night, and a large-scale addition of votes
for the Jubilee Party’s presidential candidate took place. The IEBC
Chairman firmly denied the allegation. The IEBC’s process of comparing
original tally sheets, which are legally recognized documents, to the
database results should reveal whether that took place and simultaneously
preserve the integrity of the process. The verification of polling
procedures and results tabulation based on a nationally representative
statistical model (commonly referred to as a nonpartisan parallel vote
tabulation) conducted by the Elections Observation Group (ELOG) should
provide a critical independent safeguard of electoral integrity.

The delegation would like to draw attention to NDI’s August 1 statement
concerning the brutal murder of the IEBC’s IT manager Mr. Christopher
Msando, where the Institute expressed its deepest condolences and joined
with those calling for protection of IEBC staff and a full and effective
investigation to bring the perpetrators to justice. The delegation deplores
such violence in or outside the electoral context.

In the spirit of international cooperation, the delegation respectfully
offers recommendations at the conclusion of this statement. NDI will
continue to monitor the process and engage with Kenyans working to ensure
electoral integrity and democratic progress.

   1.

   THE ELECTION CONTEXT

The 2017 presidential election is a repeat contest between two
long-standing Kenyan politicians, whose constituencies result from a series
of alliances between political parties representing different population
groups. The presidential and other contests should be understood in light
of the 2013 elections, and are the first national polls organized after the
suspension of cases pending before the International Criminal Court that
resulted from the devastating 2007-08 post-election violence.

The 2013 Kenyan elections marked a signiﬁcant milestone in the country’s
political history. They represented the ﬁrst polls conducted after
comprehensive changes to the political system. Among those changes were the
adoption of the 2010 Constitution and the creation of a new election
management body: the IEBC (or Commission). The 2010 Constitution provides a
significantly more complex electoral architecture than that which
previously existed, including establishing 47 counties with governors and
county assemblies. These changes took place alongside a series of sweeping
reforms, which had been discussed in Kenyan politics since the 1990s and
were implemented in response to the 2007 post-election violence that killed
more than 1,000 people and internally displaced more than 600,000.

Consequently, on August 8, Kenyan voters cast six separate ballots for: the
president; members of the National Assembly; senators; county governors;
members of County Assemblies; and one woman representative to the National
Assembly from each of the 47 counties. For the presidential election,
incumbent Uhuru Kenyatta of the Jubilee Party again faced his principal
challenger in 2013 Raila Odinga of the newly constituted National Super
Alliance. Multiple opinion polls conducted in advance of election day
predicted a very close race between the two. Competitive elections were
also held at other levels under Kenya’s decentralized post-2010 system of
government, as 19.6 million registered voters considered more than 14,500
candidates for the country’s 1,882 elected posts.

Election Administration

Despite the considerable progress made in the 2013 election cycle, public
confidence in the IEBC diminished as a result of technical failures in the
polling process and criticisms of its performance by opposition parties,
their supporters and others, following Raila Odinga’s unsuccessful court
challenge of the 2013 presidential election result. Allegations of
corruption concerning the commission added to its problems. The opposition
mounted large-scale protests against the IEBC in 2016, some of which were
accompanied by isolated acts of violence. Resulting negotiations led the
government to replace the IEBC commissioners and to reduce the number of
Commission members to seven.

The new IEBC commissioners, who include three women and Chairman Wafula
Chebukati, were appointed in early 2017 and installed with just over six
months before the elections. The new Commission faced widespread scrutiny
and concern over its ability to organize general elections in that short
timeframe, especially given the commissioners’ inexperience in managing
elections. While the IEBC’s staff had continued electoral preparations, key
decisions by the Commission were required about legislatively mandated
technologies, ballot procurement and other matters. Those and other
decisions were met with a plethora of legal challenges by companies that
lost bids, civil society groups, and opposition parties. The litigation
volume and substance challenged the IEBC’s ability to organize the polls on
time.

The IEBC faced tremendous challenges on a large number of fronts and met
them with resolve over its short tenure. The brutal murder of the IEBC’s IT
manager less than two weeks before the elections underscored such
challenges.

Electoral Technologies. The election commission employed biometric voter
authentication and electronic results transmission technologies,
collectively known as the Kenyan Integrated Election Management System
(KIEMS). In addition, it used hand-held devices for authenticating voters
based on national identification card and fingerprint data, known as the
Electronic Voter Identification Devices (EVIDs). Use of similar
technologies in 2013 proved controversial, because they failed to function
for a large portion of polling stations. That added to pressures concerning
the procurement, testing and functioning of such systems for the 2017
polls.

The IEBC reassured the public concerning deployment of the technologies,
though simulations and stress testing were limited. When the immediate
pre-election simulation was held, NASA alleged that it was given an
incorrect access code. On August 6, the IEBC announced that 11,155 of the
polling places (approximately 27 percent) would not have sufficient
bandwidth to electronically transmit results, which would delay their
transmission until officials in these locations could transport copies of
results to one of the 290 constituency tallying centers. The number of such
polling places was increased because the IEBC split transmission protocols
among the country’s three telecommunication companies, and assignments were
not based on best available service at each polling place. That issue added
to criticisms about electoral administration expressed in traditional and
on social media.

Voter Register. The IEBC finalized the voter register in June, though it
remained a point of controversy. The final register included 19,611,423
registered voters out of the country’s estimated 25.2 million eligible
voters. That represented a 36 percent increase from the 2013 roll.

An independent audit of the voter register undertaken by KPMG between early
April and June 9 indicated that it included 92,277 deceased persons and
close to 200,000 duplicate registrants. Additionally, the audit found that
half a million records had incomplete registrant details. The IEBC said
that it expunged 88,602 deceased individuals from the registry but that it
retained 171,476 records of potentially deceased voters, where the National
Registration Bureau database and the voter register did not correspond. The
IEBC explained that it took this approach to minimize disenfranchisement.

There also was a public display period for individuals to check and correct
their registration status. On August 3, the high court ordered IEBC to
publicly gazette the voters register, and open it within 48 hours for
inspection at polling stations or in a public portal.  The Commission then
made the register available on its website, which allowed individuals to
see their records, though the late posting did not provide for timely
independent verifications of the register.

Open Electoral Data. The late posting of the voter register and posting it
without it being in complete and bulk form fell short of best practices for
open electoral data. An important opportunity for timely independent
verification of the register and consequent public confidence building was
thus missed. The IEBC planned to make available through an online portal
polling station results transmissions from the 40,883 polling places and
results tabulation transmissions from the 290 constituency tabulation
centers. Accomplishing that in a timely, machine readable, complete and
bulk format that would allow for easy analysis, and volatility about the
election results would be greatly diminished. Instituting such open
electoral data practices would also be an inoculation against circulation
of fake results and similar disinformation about the elections.

Voter Education. The IEBC is constitutionally mandated to conduct voter
education. (Article 84(4)(g)). Recognizing the rights of civil society
organizations to engage in voter education and the need to mobilize
multiple sectors, the IEBC issued materials and accredited a number of
groups to conduct such programs. This included the IEBC engaging 2,900
voter education facilitators, two per ward. Long-term election observation
efforts reported that there was an uptick in voter education activities in
the latter part of the pre-election period but that more efforts were
needed.

Political Party Codes of Conduct. Parties are subject to the Electoral Code
of Conduct contained in the electoral law and the IEBC’s Political Party
Code of Conduct. Their provisions pertain to party leaders and members
concerning actions toward each other and toward the public. While the
enforcement of those codes depends on parties educating and disciplining
members, the courts and the IEBC have enforcement roles. For its part, the
IEBC invoked these provisions, calling candidates to task on 71 occasions
and imposing sanctions on candidates, including fines and the
disqualification of one candidate for member of parliament.

Election-Related Litigation and Dispute Resolution

NDI’s April 2017 pre-election delegation statement noted that Kenya’s court
system prepared diligently for electoral contests. This included training
judges in the specifics of electoral challenges and reserving space on
judicial calendars to ensure timely processing of cases.

In the lead-up to the August polls, companies that were unsuccessful in
their IEBC procurement bids, civil society groups, and NASA took numerous
cases to court related to election administration. The courts demonstrated
capacity and independence in their proceedings, providing a number of
significant rulings in favor of challengers and deciding others in favor of
the IEBC. In the face of criticism of judicial officers and court decisions
by the two major parties, the Chief Justice of Kenya made a strong public
statement against political leaders casting aspersions on the courts and
undermining public confidence in them for political gain. These and other
actions by the courts will likely raise public trust in the judiciary in
the long term, even as both political camps continued to express some
mistrust ahead of the 2017 election.

Several examples of important judicial rulings are summarized below.

   -

   Selection of the voter register audit firm: A petition was lodged at the
   High Court against the selection of KPMG as the auditor of the voter
   register, citing insufficient consultations in the tender. The High Court
   initially granted an injunction suspending the tender to allow for a full
   hearing on the matter. In its ruling, the court dismissed the petition and
   KPMG was eventually able to move forward with the audit.

   -

   Procurement of ballot papers: Unsuccessful bidders challenged the
   procurement process for ballot papers, thus delaying selection of a vendor.
   The IEBC eventually chose to “single-source” the contract to a Dubai-based
   firm. The opposition then brought a case to court, which cancelled the
   printing of presidential papers until the Court of Appeal reversed the
   decision on July 20.

   -

   Finalizing results at the constituency and polling station levels: In
   2013, the returning officers in each constituency transmitted results to
   the national tally center in Nairobi, at which point the results were
   collated after mistakes were corrected and eventually results were
   announced as final. The opposition successfully challenged this system,
   receiving a ruling that in 2017 all presidential results are declared final
   at the constituency level before they are submitted to the national tally
   center, where results must be tabulated without making corrections. A later
   case similarly ruled that polling station results would be final and thus
   not subject to correction at higher administrative levels.
   -

   Use of technology on election day: The High Court dismissed a case filed
   by NASA seeking to make the August polls exclusively electronic. NASA also
   lost its bid to have polls postponed in areas where breakdowns of the
   electronic system occurred in the 2017 polls. The petition argued that the
   IEBC had failed to put in place a complementary system as required by law,
   but the High Court ruled that the Commission had instituted sufficient
   mechanisms (a manual backup) to manage such problems.

As noted in NDI’s April 2017 pre-election assessment statement, the
Political Parties Disputes Tribunal (PPDT) appeared to be under-resourced.
It later received approximately 300 petitions concerning the political
parties’ primary elections, which challenged its capacities. The 30-day
period for resolving such petitions had to be extended, and complaints were
lodged at the High Court, claiming that petitions did not receive adequate
process by the PPDT. A number of such court complaints were pending as the
elections approached, which may contribute to legal challenges to some of
the August 8 polls.

The Ethics and Anti-Corruption Commission reviewed candidates and supplied
the IEBC with the names of approximately 100 individuals standing for
various offices who may not meet constitutional requirements for leadership
and integrity. All of the candidates were allowed to stand in the
elections, highlighting the need to consider criteria that should be used
concerning those provisions in the future.

Political Parties and Campaigning

Party Primaries. In April 2017, the major political parties conducted
primaries to determine their general election candidates. While the 2013
primaries were widely perceived as permitting pre-selected aspirants to
advance to the general elections, this year’s primaries were characterized
by sharp competition at all levels of office. Notably, large numbers of
incumbents lost to challengers at the primary level.

However, poor organization posed problems, including some candidates being
left off ballots, precincts that did not receive ballots, inadequate means
to ensure that voters were members of parties in whose primaries they
voted, and disenfranchisement of some prospective voters whose party
membership could not be established. There were consequent charges of
rigging and isolated incidents of violence, though violence did not
materialize on scales that had been feared beforehand. The number of women
who emerged as primary winners was disappointing, with women representing
only 11 percent of party nominations and 7 percent of those who made it to
the ballot on August 8 (excluding women-only seats). (Please see the
section on Inclusion, below.)

A record number of independents registered to compete in the 2017’s general
elections, representing approximately 25 percent of the candidates in the
August 8 polls. Incumbent defeats and the merger of former Jubilee Alliance
parties into the Jubilee Party (which reduced the number of party
nominations) likely contributed in part to the increase of independent
candidates.

The Election Campaign. Campaigning began officially just over a month ahead
of the elections and ended two days before the polls opened. The two main
presidential campaigns were robust with caravans and rallies held across
the country, although with some difficulties, in their opponent’s
stronghold areas. Campaigns for other offices were hotly contested as well,
albeit on smaller scales. Campaigning also included person-to-person
contacts at homes, in markets, and other places, and spreading messages
through various media.

Two presidential debates were scheduled to be broadcast, though one,
featuring the two leading presidential candidates’ running mates, was
cancelled because the two main candidates said they would not participate.
Raila Odinga attended the second debate, though President Kenyatta did not,
stating that the debate rules were not developed with proper consultation.
Mr. Odinga benefited from the solo platform, though the population was
deprived of the opportunity to directly compare the two candidates in that
forum.

Presidential campaigns, with uneven coverage favorable to the incumbent,
received attention across print, broadcast and social media. This allowed
both presidential candidates to be known to the public, though they
concentrated largely on matters of personality and criticism of the IEBC
and courts, rather than on substantive policy issues. This approach
reinforced ethnic based politics. Unfortunately, disinformation including
“fake news” and attacks on social media polluted the campaign. (Please see
the Media Environment section below.)

Recently passed campaign finance regulations were suspended until the next
Kenyan elections. Both presidential campaigns were significantly resourced,
though there were persistent complaints of the use of government resources
for the electoral advantage of incumbents at all levels. Allegations were
widespread of vote buying by all sides, which corrodes public integrity
through petty political corruption.

Security and Concerns about Election Related Violence

There were sporadic incidents of politically motivated violence during the
campaign period, including threats and some clashes of opposing sides at
rallies. Hate speech and incitement remained a troubling part of
campaigning in a variety of ways, including at some rallies, over the
airwaves and social media. In Siaya county, the IEBC suspended political
rallies for one week to avert escalation of violence and gubernatorial
campaigning was suspended in Marsabit County, while in Homabay county, a
bodyguard to a female candidate, Millie Mabona, was crushed by a vehicle
during a violent confrontation with opponents. Physical violence and
threats of it, as in all countries, has a prejudicial impact on women’s
participation as candidates, election officials and voters. (See the
section on Inclusion below.)

The IEBC took action to address incidences of violence during campaigns by
summoning candidates for disciplinary hearings. As the election date drew
near, the brutal murder of the IEBC’s IT manager, a deadly incident at the
deputy president’s home, media reports of increased potentials for election
related violence led some to depart areas where such violence could break
out after the polls.

The pre-election period witnessed some clashes based principally on deeply
rooted cleavages related to access to land and water. They added to
concerns about potentials for electoral violence, particularly related to
county level political rivalries. Such incidents occurred in Kenya’s
eastern and southeast regions, including in Laikipia and Baringo Counties
in the Rift Valley and in Narok County. Al-Shabaab also conducted attacks
during the pre-election period in counties bordering Somalia, including
Mandera County in the northeast and Lamu County in the south. Elections
provide a target of opportunity to such violent extremists bent on
destroying the stability of legitimate states, and the potential for
extremist attacks added to concerns about violence related to the polls.

Civil society organizations engaged in a number of efforts to mitigate
potentials for electoral related violence. These included dialogue
promotion, early warning/early response efforts and long-term observation
of the campaign environment. (See the section Citizen Engagement below.)

To provide for safety and security on election day, the IEBC and the
National Police Service announced that two security officers would be
posted at each polling station. A combination of security forces mobilized
the deployment of 180,000 officers for election day. In the lead-up to
election day, press releases were issued about the tear gas, crowd control,
and firearms that security personnel would be given to respond to protests
and electoral violence. Serious concerns were expressed in multiple
quarters that the officers lacked adequate training to manage large and
active crowds without escalating a situation, and calls were made to use
only appropriate, proportionate measures to ensure public safety. Fears
that the Kenyan Defense Forces were also placed on standby to protect
against large-scale electoral related violence led many to question whether
overreaction was taking place and whether the heavy security measures had
the potential of suppressing voter participation, particularly if the
forces were aggressively deployed in opposition strongholds.

Media Environment, Disinformation and Hate Speech

Kenya benefits from an active print, broadcast and social media
environment. The Kenya Broadcasting Corporation is the state-run media
organization, while privately owned organizations include the Nation Media
Group, the Standard Group (owned by former President Moi), Royal Media
Services, and Mediamax Network Limited (owned by the Kenyatta family).
Media ownership reflects some geographic, ethnic and political
orientations, while government advertisement revenues are mainstays for
these media houses, which many report has a limiting effect on reporting.

Social media has mushroomed in Kenya, where reportedly 90 percent of the
population uses mobile phones (over 40 percent of which are smartphones).
WhatsApp is the most widely used platform, while Twitter, Facebook and
other platforms are also significant. These and other digital platforms
have been used to create accountability and mitigate potentials for
violence. (See the Citizen Engagement section below.) Media houses and a
number of investigative reporters are active on social media as are various
organizations. For many people, social media exchanges have complemented or
replaced traditional media as news sources, which has both enhanced freedom
of expression and made it more difficult to determine the credibility of
reports.

Fake news (false reports consciously manufactured) and other forms of
disinformation are not new to Kenyan elections, but they took on new,
significant dimensions through social media in the lead-up to August 8. A
May 2017 study conducted by the communications consulting firms Portland
Africa and GeoPoll suggested that 90 percent of Kenyans had seen or heard
false news concerning this year’s elections. A false Facebook posting that
went viral reported that ballot papers marked in favor of President
Kenyatta were stored at a Nairobi army barracks. That fabrication was
likely generated by his detractors. Online attack ads replete with false
information and even scenes of impending violence and fake websites, like
“Real Raila” (www.therealraila.com), potentially swayed the decisions of
some voters. Software programs that create robotic multiplication of hits
on a site (bots) force sites such as Real Raila to the top of search
engines and increase viewings of such disinformation sites. Fake videos
made out to be from BBC and CNN circulated on social media stating falsely
that new opinion polls showed a likely incumbent electoral victory. They
were likely created by Odinga’s detractors.

Disinformation often plays off social, ethnic and other divides with the
intent to exacerbate them and either motivate a political base to action or
depress an opponent’s supporters from participating in elections. In Kenya,
fake news and other such tactics blend into hate speech and incitement,
which heightens potentials for politically motivated violence in and beyond
elections. This makes disinformation and hate speech over social media
particularly dangerous. Such tactics can only be countered with expanding
media literacy, accountability for those propagating disinformation on
behalf of political actors, wide access to key electoral data to inoculate
against fake reports, and a robust media and civil society.

Universal and Equal Suffrage and Inclusion in Electoral Processes

The 2010 Constitution stipulates that sovereignty belongs to the people and
that they may exercise sovereign power through elected representatives; it
also guarantees equal protection of all rights, free from discrimination
based on gender, ethnicity, age or other status, and the right to universal
suffrage in democratic elections. (Articles 1, 2, 27 and 36.) While the
constitution provides a framework for an inclusive political process,
barriers to increasing the representation of women as well as young women
and men as political actors still exist. For example, the costs of
nomination, campaigning and (if necessary) dispute resolution can pose high
hurdles for women and young people. Difficulties in acquiring national ID
cards - a prerequisite for voter registration - is still a pervasive
problem, particularly for young people, and estimates indicate that youth
registration stands at around 57 percent of the eligible youth voting
population.

For women, the 2010 Constitution specifies that no more than two-thirds of
either gender may occupy elected public bodies. (Article 81(b).) However,
the 2013 elections failed to produce that result, and there appears to be
no immediate path to overcome the unconstitutional circumstance. Women
represent only 20 percent of the 11th Parliament. No women were elected
among the 47 county governors, and other organs of government have also not
met the rule. The Supreme Court advised in 2012 that the measure had to be
progressively implemented, giving Parliament until 2015 to act. Several
bills were introduced to that effect, though none passed. In March 2017,
the High Court ruled that legislation should be enacted within 60 days to
enforce the gender rule, but that did not happen.

The results of the 2017 party primaries demonstrate an improvement in
women’s engagement over 2013, though the number of women who participated
in the party primaries (11 percent) and in the general elections (7
percent) was still well below the constitutionally-required gender
threshold. For the first time, the two strongest political alliances put
forth female senatorial and gubernatorial candidates in their strongholds.
This indicates that Kenya is likely to have the first woman governor(s) and
senator(s) following the 2017 polls. There is also likely to be an increase
in the number of women members of National Assembly and County Assemblies.
These developments can be attributed in part to initiatives by political
parties to increase women’s participation, the re-engagement of
unsuccessful 2013 women aspirants, and increased opportunities for election
at the county level, as well as the gender quota.

Violence against women in elections. Kenyan women still face a wide set of
challenges as politicians, voters, candidates and election workers. This
includes political violence through physical assaults, threats and coercion
(including sexual harassment, sexual extortion, and economic threats). For
example, during the party primaries, candidate Millie Odhiambo’s house was
burned down and her bodyguard was run over and killed by a man driving a
rival’s campaign vehicle. Eunice Wambui, an aspiring parliamentarian for
Embakasi South, was attacked during a voter registration drive in Mukuru
Kwa Reuben, one of Nairobi’s sprawling slums. Esther Passaris, a candidate
for Nairobi County representative, was held hostage at the University of
Nairobi by a group of male students.

Violence against women has not only been directed against candidates.
Mulika Uhalifu, an organization that highlighted cases of electoral
offences and insecurity in Nakuru County, reported that women voters
requested separate voting queues during the party primaries to avoid
indecent touching. Clashes and threats of violence also inhibit women from
political participation. For example, women moving their families away from
areas where electoral violence might occur may cause disenfranchisement.

Citizen Engagement

Kenya benefits from a sophisticated, vocal and active civil society,
including faith-based and civic organizations, that have made historic
contributions to political reform, electoral integrity, and related
peacebuilding. In the runup to the 2017 elections their work embraced a
range of techniques from direct observation and dialogue promotion to
digital tools and social media communications to encourage electoral
participation, deter manipulation, and limit potentials for violence.

Thousands of Kenyans monitored the 2017 election process. For example, ELOG
(a coalition of civic and faith-based organizations) fielded pre-election
monitors in all of Kenya’s 290 constituencies and issued five pre-election
reports, while it mobilized approximately 8,000 election-day observers
throughout the country. It employed a nationally representative statistical
sample and rapid short messaging service (SMS) reporting to comment on
voting and counting processes. Uraia Trust and other civil society groups
engaged in voter and civic education campaigning for the elections. The
Multi-Sectoral Forum established by religious leaders promoted political
dialogue to reduce tensions. Uwiano and Ushahidi SMS platforms aided
district peace committees through crowd reporting of incidents, while
others also joined in anti-violence efforts.

   1.

   ELECTION DAY OBSERVATIONS

NDI teams deployed to 13 counties throughout the country where they
observed the opening, voting and counting processes. Overall, they
witnessed a calm environment free of significant problems or security
incidents. Throughout the day, teams observed long lines of voters in many
polling locations. Women with small children and the elderly were given
priority in the queues at most polling sites observed.  In some small
polling sites - especially those that used tents - overcrowding may have
created challenges for maintaining secrecy of the ballot.

Teams also witnessed significant numbers of assisted voters throughout the
day.  The complexities of casting ballots in six separate elections may
have contributed to the number of persons who sought assistance.
Difficulties distinguishing between closely colored ballots in dim lighting
presented challenges for some voters. In addition, most polling stations
were not easily accessible to persons with disabilities. Observers
expressed concern that procedures allowing multiple party or candidate
agents to witness the assisted voting process may have compromised secrecy
of the ballot. Inconsistencies in the sealing of ballot boxes in a few
polling stations were also noted.

IEBC officials largely adhered to voting procedures and performed their
functions professionally despite long hours. The Electronic Voter
Identification Devices (EVIDs) were present and functioned in all polling
stations observed, although in some locations suffered technical
difficulties contributing to delays. Some inconsistencies were noted in the
voter authentication process across polling stations, particularly with
respect to the number of attempts made at biometric fingerprint
authentication. In addition, a few polling stations lacked a printed copy
Register of Voters, though this did not have an impact on the voter
identification process.

Counting also took place in a calm atmosphere. Officials generally followed
procedures.  Party and candidate agents were present through the process in
the vast majority of polling stations. In some stations the counting
process was slow to start. When counting concluded, party and candidate
agents signed the Declaration of Results Form in the stations observed.

   1.

   RECOMMENDATIONS

The delegation urges Kenyan electoral actors to address immediate
challenges during the consolidation of results and to apply lessons from
the 2017 elections to benefit the post-election political process. In its
final report, NDI will offer further, longer-term recommendations
concerning enhancing inclusion in political processes and improving
electoral processes. In the spirit of international cooperation, the
delegation offers the following recommendations, which it believes would
strengthen the Kenyan electoral framework.

To the IEBC:

   -

   Ensure timely and periodic communications to the Kenyan people and
   political contestants about the results tallying process, including any
   issues that may complicate the completion of the process within the
   constitutional timeframe.
   -

   Provide complete and timely polling station level results in an easily
   analyzable format.
   -

   Make copies of the scanned 34A and 34B Forms available to the public in
   a timely manner, as well as the Declaration of Results Forms for the other
   elections.

To political parties and candidates:

   -

   Publicly and vigorously encourage supporters to refrain from any acts of
   violence and/or intimidation.
   -

   Seek redress for electoral complaints through proper legal channels and
   abide by the outcomes of judicial proceedings.

To the Government of Kenya and the Judiciary:

   -

   Ensure that information about how to file election-related petitions is
   widely publicized in forms that are accessible for electoral contestants
   and the general public, including persons with disabilities and persons
   with limited literacy.
   -

   Regularly inform the public about progress made into the investigation
   of the death of IEBC IT Manager Chris Msando.

To security forces:

   -

   Demonstrate professionalism and exercise reasonable restraint in the
   maintenance of order if called upon to respond to any security incidents in
   the post-election period.
   -

   Provide particular instructions to deployed security forces on
   recognizing and addressing violence against women in elections, including
   through connecting victims to crisis hotlines and rapid response mechanisms.

To civil society and the media:

   -

   Continue to actively monitor electoral processes, including the
   determination of electoral results and any legal processes related to the
   August 8 elections.
   -

   Continue to monitor and engage citizens in identifying incidents of hate
   speech and incitement to violence and coordinate with early warning/early
   response efforts.
   -

   Engage in responsible, fact-based coverage of post-election developments.
   -

   Civil society and media houses as well as the IEBC should actively
   address rumors and fake information in the post-election period in order to
   provide citizens with information they need to enhance political and
   governmental accountability.

To the people of Kenya:

   -

   Exercise restraint as you await the final electoral outcome, continuing
   the peaceful example set throughout the country on August 8.

   1.

   DELEGATES

Dr. Aisha Abdullahi, Nigeria, former Commissioner for Political Affairs,
African Union Commission

Rep. Karen Bass, United States, Elected Member, U.S. House of
Representatives; Foreign Affairs Committee; Ranking Member, Africa
Subcommittee

Ms. Lauren Ploch Blanchard, United States, African Affairs Specialist,
Congressional Research Service

Fr. Leonard Chiti, Zambia, Director, Jesuit Center for Theological
Reflection

Dr. Menna Demessie, United States, Vice President, Policy Analysis and
Research, Congressional Black Caucus Foundation

Ms. Amanda Domingues, United States, Senior Program Assistant, Gender,
Women and Democracy, National Democratic Institute

Ms. Tessa Dooms, South Africa, Managing Director, Youth Lab

Mr. Steven Duwa, Malawi, Chairperson, Malawi Electoral Support Network

Ms. Heather Flynn, United States, Senior Professional Staff, U.S. Senate
Foreign Relations Committee

Ms. Meghan Gallagher, United States, Policy Analyst, U.S. House of
Representatives Foreign Affairs Committee

Mr. Jeggan Grey-Johnson, The Gambia, Team Leader, Anti-Corruption Cluster,
Open Society Foundations

Ms. Marlène Haas, The Netherlands, International Development Consultant and
Gender Specialist

Prof. Attahiru Jega, Nigeria, former Chairman, Independent National
Electoral Commission

Dr. Keith Jennings, United States, Senior Associate and Regional Director,
Southern and East Africa, National Democratic Institute

Ms. Erin Kolodjeski, United States, Professional Staff, U.S. House of
Representatives Appropriations Committee

Mr. Jame David Kolok, South Sudan, Executive Director, Foundation for
Democracy and Accountable Governance

Ms. Sophia Lalani, United States, Legislative Assistant, Foreign Policy,
Office of U.S. Senator Cory Booker; Foreign Relations Committee, Ranking
Member, Africa and Global Health Policy Subcommittee

Mr. Pat Merloe, United States, Senior Associate and Director of Electoral
Programs, National Democratic Institute

Mr. Rebaone Mmereki, Botswana, Secretary General, Organization for Youth
and Elections in Botswana

Justice Yvonne Mokgoro, South Africa, former Judge, Constitutional Court of
South Africa

Mr. Henry Muguzi, Uganda, Executive Director, Alliance for Campaign Finance
Monitoring

Ms. Maud Nyamhunga, Zimbabwe, International Consultant

Ms. Ayo Obe, Nigeria, Vice Chair, International Crisis Group

Ms. Rhoda Osei-Afful, Ghana, Research Officer, Ghana Center for Democratic
Development

Mr. Dave Peterson, United States, Senior Director, Africa Programs,
National Endowment for Democracy

Ms. Karen Robb, United States, Chief of Staff, Office of U.S. Senator Chris
Van Hollen

Dr. Shannon Smith, United States, Professor of Practice, National Defense
University

Ms. Esther Tawiah, Ghana, Executive Director, Gender Center for Empowering
Development

Ms. Rindai Chipfunde Vava, Zimbabwe, Director, Zimbabwe Election Support
Network

Gov. Christine T. Whitman, United States, former Governor of New Jerse