A now hackneyed Kenyan aphorism is that when the hippo comes out of the water to say the crocodile is sick, you had better believe him.
Moses Kuria has been close enough to Kenya’s political machinery to know where some of the bodies are buried. Uhuru Kenyatta has been a principal actor in four presidential elections since 2007. Between them, they have now given Kenyans radically different versions of what has been happening.
Kuria has claimed that Raila Odinga won the 2007 and 2013 elections, but Uhuru won in 2017, and William Ruto prevailed in 2022. Kuria has gone further on 2013, saying that, having had sight of the election servers, he and others helped Uhuru avoid a runoff through the rejected-votes litigation and alleged interference with the servers. Uhuru, meanwhile, has said Raila won in 2022.
James Baldwin titled one of his books The Evidence of Things Not Seen . Kenya’s electoral history has the same quality in the sense that what matters most is often what the electoral record cannot show.
The 2022 election was subjected to an unusually detailed forensic challenge. The petitioners’ ICT experts complained of restricted access, missing logs, incomplete penetration-testing reports and problems with the server material made available for scrutiny. They concluded that the exercise had been hindered and identified what they described as vulnerabilities and compromises.
The Supreme Court found that the alleged electronic manipulation had not been proved. It found no credible evidence that anyone had accessed the results transmission system to intercept, detain or temporarily store election results forms before they appeared on the public portal.
The allegation that 11,000 Forms 34A had been subjected to staging was not proved. The sample original forms from the contested polling stations matched those on the portal and the certified copies before the court.
That did not settle every political argument about 2022, but it does establish what the court could find from the evidence placed before it.
Back in 2017, Kenya had tried to solve the old problem of unverifiable elections with technology. The Supreme Court found that technology had instead exposed another weakness. IEBC knew that roughly 11,000 polling stations lacked effective 3G or 4G coverage. Yet presidential results were required to be electronically transmitted from polling stations.
The court found that, when the final result was declared, not all Forms 34A had been electronically and simultaneously transmitted as required by law. IEBC also failed to provide critical server logs that could have helped establish what had happened inside the system.
The court did not find that Raila had won. But the machinery through which the presidential result was supposed to become verifiable had not been properly followed. It was enough to annul the election. The problem, therefore, was not simply that technology had failed. The failure left an evidentiary hole where certainty was supposed to be.
In 2013, Kuria was not an observer; he was one of the petitioners who went to the Supreme Court challenging, among other things, the treatment of rejected votes. The court agreed that rejected votes should not form part of the denominator used to determine the presidential threshold. It nevertheless upheld Uhuru’s election.
The Supreme Court had ordered scrutiny of Forms 34 and 36 from all 33,400 polling stations. Only about 18,000 were scrutinised. The technology used during scrutiny broke down. The court’s attempt to independently interrogate the electoral record did not reach the full universe it had ordered examined.
The Independent Review Commission headed by Judge Johann Kriegler reached the bleakest conclusion of all about the 2007 election. The conduct of the election was so materially defective that it was impossible to establish a true and reliable presidential result. That does not prove Kuria’s claim that Raila won. It does not prove that Kibaki won either. The electoral record could no longer answer that question.
The argument over whether elections are rigged or free and fair misses the more basic question: what survives when an election is put on trial? Sometimes the evidence establishes failure. At other times, an allegation cannot be proved. Sometimes the record is simply incomplete. Often, it is so defective that the question cannot be answered.
The cost of such uncertainty is not just borne by the loser. It burdens the victor with a legitimacy that can never quite escape the question of how victory was obtained. It gives the defeated a grievance that can outlive the election, leaving democracy dependent on belief where it should have evidence.
The testimony of people who were inside the machinery is important, but it cannot substitute for a system that leaves behind a complete, independently auditable record. Kenyans should not need the hippo to tell them that the crocodile is sick. The election should leave enough evidence to prove the truth.
The writer is a board member of KHRC and writes in his individual capacity. @kwamchetsi; [email protected] .
