In its second report Mirage at Dusk: A human rights account of the 2017 General Elections the KNCHR recorded various human rights violations and non-compliance of the law by various political actors of political party campaigns. The bribery of voters was noted during the campaign period, with this year’s campaigns having been gone a notch higher using branded items, including basic items such as bread and water.
The various forms of bribery manifested the following ways:
Peculiar cases were recorded in Machakos and Makueni where strangers would walk to a public place, call passers-by and hand-out to them an unsolicited amount of money for no particular reasons. Citizens also received calls from persons who promised to issue them with money if they wake up to vote. The rest of the bribery cases were outright dishing out of money, especially with the new strategy of door - to - door campaigns that were witnessed in 2017.
Blankets being distributed to elderly persons by the Jubilee Party MP Candidate for Ainamoi, Mr. Maritim in Kapchetoror, Kericho County on 14th June 2017
Electoral violence was recorded and mostly took place during events or functions (even though some of these events or functions were not expected to be campaign platforms) that were either political platforms or social events that created a politically-charged atmosphere. The aforementioned events or functions included but were not limited to; campaign rallies, prayer meetings, funerals and fund-raising meetings.
Acts of incitement to violence was also recorded by the Commission during the campaign period. The attempt though, to incite communities against each other seemed not to have taken deep roots and no cases of ethnic profiling were reported to the Commission. However, in the run up to Election Day, there were reported cases of persons moving to safer areas for fear of reprisals but those who remained in their area of residence reported no attacks leading to the voting day.
Supporters injured during Jubilee and Economic Freedom Party EFP clash in Takaba, Mandera County before the arrival of the Deputy President William Ruto for the rally
The Commission documented cases of incitement in twenty-two (22) Counties but it was most prevalent in Kisumu County followed by Bomet, Garissa, Kakamega, Meru and Migori Counties. The Jubilee Party was also found to be the Political Party with the highest incidences of incitement followed by the Orange Democratic Movement (ODM) Party.
The Leadership and integrity act in section 23 (1) prohibited state and public officers from engaging in any political activities that may compromise or may seem to compromise them political neutrality of the officer. The Commission however, is of the view that this provision is open to abuse. It is one of those avenues that we noted rampant misuse of state resources, where Cabinet Secretaries used their offices to campaign for the government such as; through food donations, launching of roads and water projects and much more. On the same note, Governors too used taxpayer monies to continue with their campaigns, which included use of government vehicles and blocking their competitors’ access to public venues to hold campaign rallies.
Misuse of public resources during the electoral cycle ranges from illegal use of government vehicles, installations and buildings during campaigns, distribution of material goodies and donations to the electorate, active involvement of public officers in partisan political activities aimed at influencing or tilting the choices of voters in the political contests.
Vehicle belonging to the County government of Marsabit ferrying supporters during political rally held at Kamboe of Logologo Ward of Laisamis Constituency on 1st July 2017
In Kenya, it is illegal for the incumbent candidates to use public resources for their political campaigns. Section 14 and 15 of the Election Offences Act, 2016 prohibits the use of public resources as well as participation of public officers during campaigns.During the campaign period, the Commission documented a total of seventy-seven (77) cases of direct public resources misuse and abuse of office across the country by politicians. The cases vary from the use of government vehicles, use of vehicles belonging to public schools, use of school playgrounds in holding political rallies, issuance and distribution of relief food and money and the commissioning and launch of projects.
Despite a directive from the Cabinet Secretary of Education prohibiting the use of children and school buses and grounds for the conduct of political campaigns, the Commission recorded a worrying trend of schools being declared campaign venues by candidates when submitting their schedules to the IEBC. When classes were ongoing, learning was interrupted in order to allow the candidates to use the school grounds for campaign purposes. School buses were also hired to ferry supporters.
Students waving flags in support of the Jubilee party after the launch of the Isebania-Migori Road
Children were used to form part of the crowd in the campaigns and at times also used to carry campaign posters, placards, and to be on top of campaign rigs to provide entertainment to the amusement of the candidates and their supporters. In several instances, children were exposed to dangers related to the political campaigns especially when supporters of competing candidates clashed.The KNCHR documented instances where politicians did not adhere to the outlined timelines in their campaigns. It was observed that in some cases, politicians resorted to night meetings, which were highly secretive and limited to a specific and small number of individuals including door-to-door campaign strategies. The Commission is of the opinion that such secretive and exclusive meetings are not conducive as they could have been used as avenues for plotting or executing electoral malpractice. The night meetings were often not subjected to scrutiny hence offering an opportunity for the candidates to in one way or another mobilize, incite and induce
During the polling day, the Commission monitored several polling stations and focused on monitoring the compliance to the laid down regulations under the IEBC Act and the Persons with Disability Act. These two regulations encapsulated how the electoral environment provided a voting process that was accessible, appropriate, peaceful and conducive to voters in respect to secrecy and the requisite infrastructure.
It is important to note that the Presiding and Returning Officers are very instrumental in ensuring that the surrounding electoral environment in and around the polling and tallying centres are conducive. Their key roles are to ensure and work together with the NPS and the rest of the IEBC staff, especially the clerks, to remove, stop or reduce any irregularities that are obvious to them before and during the polling.
The Commission observed the following irregularities which had a negative impact on the prevailing electoral environment;
The Commission observed that in most polling stations IEBC officials had all election materials. In many polling stations there was orderly flow of voters and the Presiding Officers adhered to the opening time and carried out the laid down opening procedures including the opening up of the KIEMS kits. In most Polling Centres, appropriate measures had been put in place to ensure easy accessibility by PWDS, the sick, expectant women and the older members of society. In general, the polling stations opened on time and had enough essential voting materials and election staff.
The KIEMS kit was being used for the first time in the 2017 General Election. The identification of voters using the KIEMS kit was the first step in determining whether voters were able to cast their ballot or not at the polling stations. The Presiding Officer was the key person who was to unlock the kit using a specific and individualized password and the barcode of the ballot papers issued.
One of the anomalies identified was that Form 32A lacked security features. Where the original forms ran out, some POs made photocopies which were not serialized, making them difficult to account for. Another anomaly saw the distribution of Form 32A to be uneven from one polling station to another. The Commission recorded a few cases where voters were turned away because the form was not availed to the PO as part of the electoral material or they could not be identified at all in the system. KNCHR further recorded incidences where POs agreed with the party agents available to allow persons with ID but who could not be identified by use of the three steps to still cast their ballot.
In other cases the voters did not even fill Form 32A. Where voters who were not identified through the three steps but their names were on the manual register pinned at the Polling Centre, the POs issued them with Form 32A and allowed them to vote. In some Polling Centres, when voters missed to be identified using their fingerprints, the PO did not proceed to alpha numeric or ID scan and thus did not appropriately apply the use of Form 32A despite having them.
It is clear that the POs in various Polling Stations had a different understanding of Form 32A and how to administer it. Indeed, the application of Form 32A was apparently confusing to POs. It’s important to note that if a voter cannot be identified in the KIEMS kit then it means that they cannot equally be found in the printed manual register because the latter is supposed to be a duplicate of the KIEMS. KNCHR observation is thus; the use of Form 32A is redundant.
The regulations allow for such persons to be assisted either by a person of their choice. This person must be an adult and should sign the oath of secrecy. The assisted voters were also required to fill Form 32. If the assisted voter was not escorted, then the Presiding Officer would assist the voter in the presence of the Political Parties’ and independent candidates ’agents at the respective Polling Station.
The Elections Regulations also provides for special consideration to pregnant women, persons with disability, older members of society and women with small children to be given first priority to vote at the Polling Stations. The Commission observed that most Presiding Officers were keen to identify such persons who required special considerations. The PO worked hand in hand with the security personnel to ensure order in their movement and facilitation.
The Commission however noted that assisting a voter who came to the polling centre un-escorted, violated their right to secrecy of the ballot. The representative agents were all present to listen in to the voter’s choice of candidate and what the PO marked. This was made worse for the assisted voters who were either visually impaired or their hearing impaired. This exposed the challenged voters to a great deal of indignity in some instances. It is the responsibility of IEBC to ensure that there are ballot papers written in braille at the bear minimal. It’s important to note that in the 2013 General Election, IEBC had printed ballot papers in braille but these were never used since the POs had not be trained on how to use them.
Party agents crowding over an assisted voter at Muslim Primary School, Mumias Central ward, Mumias West Constituency, Kakamega County
The Commission documented forty three (43) incidences where sorting, verification and counting of ballots cast was stopped or interrupted for various reasons including: power blackout, IEBC officials taking rest breaks, disparities of the KIEMS data and ballots cast, consensus seeking regarding the counting process especially on what constituted invalid, rejected or disputed votes, disagreements between various political parties or independent agents, interruption by candidates accompanied by rowdy supporters or agents and disagreements between the candidates agents and the POs on how to sort the ballot papers or the miscalculation of the valid votes.
The Commission mapped out and monitored twenty-nine (29) prisons in respect to how IEBC with the support of the Kenya Prison Services (KPS) undertook the registration process. This was particularly important for the Commission as it was the first-time prisoners being a special and vulnerable category, were being registered to participate in the General Election. The Commission noted that most of the prisoners were unable to register because they did not have their identification cards (ID). This was mainly because at the point of arrest, most of the prisoners either didn’t have identification documents on themselves or they were left at the police stations. For those prisoners who were willing to cooperate, the Kenya Prisons Service facilitated them to communicate with relatives or friends to avail ID cards for their registration in prison.
The Commission observed that many prisoners also feared to register as voters because they feared revealing their ‘true’ identity and also feared that the biometric registration system would be linked to the Directorate of Criminal Intelligence (DCI) database for criminal records.
The Commission observed that IEBC had set a very short time which was not sufficient to allow the prisoners to organize themselves and be ready for the registration given their peculiar circumstances. The prisoners were given one (1) week to register. This was inadequate for the prisoners to signal their relatives and friends to facilitate and bring their ID card to the prison for voter registration. The prison management together with the prisoners expressed that they had expected the Office of the Registrar of Persons to be more facilitative to the prisoners in assisting them acquire or collect their ID cards in good time.
Voter education for the prisoners was very limited and poorly coordinated by IEBC and many registered voters felt left out and inadequately prepared on how to vote. The Commission observed that many prisoners participated in the voting process, with many unanswered concerns including; why they were not allowed to vote for all the six elective positions, why they were not allowed to engage with campaigns, why they were not allowed to receive campaign materials including party manifestos, what would happen to their fingerprint data, among other general concerns.
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Post poll after 8th August 2017
Prior to the announcement of the Presidential election results, there was heavy presence of security agents and apparatus deployed in opposition strongholds, probably in anticipation of the ripple effect of the results announcement. Immediately the declaration was made that the incumbent President had retained his seat, many sporadic cases of insecurity begun to erupt in opposition strongholds.
The Commission at this time recorded 37 deaths where a majority of the fatalities were as a result of excessive use of force by security agents while only two were recorded to have been as a result of civilian aggression. These documented cases only tabulate those who died between 9th and 15th August 2017.
The thirty-seven (37) deaths documented in this report were victims who were killed in Kawangware, Mathare, Kibra, Lucky Summer, Baba Ndogo and Huruma all in Nairobi City County. Kondele, Manyatta, Nyamasaria, Nyalenda in Kisumu County. Siaya town and Ugunja in Siaya County and Rangwe in Homa Bay County.
Sadly, seven of the victims were minors; three girls and four boys. The youngest was a 6-months-old baby who succumbed to injuries in hospital after being clobbered at home while under the care of her mother. The other minors all aged between seven and eighteen years died from gunshot wounds.
A thirteen year old child was also assaulted by police officers on the 11th of August at around 11.00 p.m
In addition, the Commission recorded 126 cases of injuries. The grave injuries point to the use of excessive force that did not comply with the principles of necessity and proportionality as per the Sixth Schedule of the National Police Service Act. Out of the 126 documented cases, only three (3) constituted cases of civilian-to-civilian confrontation. A majority of the reported cases were as a result of police aggression towards civilians. Further, there were six (6) reported cases of sexual violence against women and girls including rape which were perpetrated by civilians and police. Cases of physical injuries were also meted on the elderly, youth and children. Thirty-one (31) cases of physical injuries involved females and 95 involved males.
KNCHR documented five (5) cases relating to unlawful destruction of private and public property by civilians in various counties after the announcement of the Presidential election results. These cases describe instances in which civilians attacked homes, fuel stations and looted business premises.
Read the full report