REMARKS BY THE CHAIRPERSON OF THE KENYA NATIONAL COMMISSION ON HUMAN RIGHTS ROSELINE ODEDE
DURING THE LAUNCH OF THE FINAL MONITORING REPORT OF 2022 KENYAN ELECTIONS DUBBED
DEMYSTIFYING OUR DEMOCRACY
THE FINAL MONITORING REPORT OF 2022 ELECTIONS
ON 26TH SEPTEMBER 2022 AT THE SAROVA STANLEY HOTEL IN NAIROBI
Ladies and Gentlemen, Good morning.
Kindly permit me to start by registering our appreciation as the Kenya National Commission on Human Rights to each and every one of you gathered here this morning. We thank you for honoring our invite.
I acknowledge the presence of key partners here present with whom we collaborated and worked closely in monitoring and observing the elections. These include:
The Norwegian Embassy who were generously supported the process.
The IEBC represented by their Chairperson Mr. Wafula Chebukati,
IPOA represented by their Chairperson Ms. Anne Makori,
CAJ represented by their Vice Chairperson Washington Sati,
NGEC represented by Commissioner Caroline Lentupuru,
NCIC represented by Hon. Engineer Philip Okundi, EBS,
NPS represented by their Director of Corporate Communications Bruno Isohi Shioso,
NCCK represented by their General Secretary Reverend Canon Chris Kinyanjui, and;
OHCHR represented by Li, Fung, Senior Human Rights Advisor.
I also acknowledge all of you present here as stakeholders with whom we have and continue to work very closely on election and human rights issues.
Ladies and Gentlemen;
Kenyan Elections are one of the most important events in the Kenyan political and civic calendar. Held every five years, they offer Kenyans the opportunity to engage in the democratic process by electing their leaders.
Today, exactly three weeks after the Supreme Court of Kenya rendered its judgment on the Presidential Election Petition, we the KNCHR have the pleasure to launch and share the findings of our final 2022 election monitoring and observation report dubbed “Demystifying Our Democracy” with you. The Kenya National Commission on Human Rights has been monitoring the 2022 Election cycle for slightly over eight (8) months with the main aim of promoting and protecting human rights before, during, and after the General Election.
The Commission has been monitoring the elections since December 2021. In June 2022 - thirty-nine (39) days to the General Election - the Commission released its findings on the Political Parties' nominations, while reflecting on the state of human rights.
On the whole we find that Kenya has made enormous strides as a country in improving some elements of the election processes while in others it is still lagging and yet indeed, in other areas it has retrogressed. While concluding thus we however find that the election was comparatively, in relation to past elections more efficient and transparent, with fewer human rights violations.
On the positive strides, the Commission acknowledges and applauds the IEBC for putting in place systems that ensured a more robust counting, tallying, transmission and announcement of results process. We particularly applaud the making of the elections results portal public, despite the difficulties, anxiety and suspicion caused by the disparate pace of capturing the returns by the various media houses.
We also applaud the security agencies for carrying out their work in a manner that adequately facilitated the right to vote and be voted for. The Security agencies were very responsive and managed to contain several incidences of violence. They were quite professional and humane in their conduct and response. Their restraint in the use of force is highly commended.
In relation to Special Interest Groups, the Commission lauds the voters for electing an increased number of Women, Youth, and Persons with Disabilities. There is however still need for improvement in the voting facilities for persons with disabilities and older persons.
The report highlights an increase in the number of independent candidates elected. This could mean one of two things; it is either a positive trend indicating that our Country is now enhancing the democratic space and allowing for a diversity of political opinions and convictions where people are voted for on their personal desirability; or it could be an indication that the internal political party mechanisms especially the nominations and dispute resolutions are disenfranchising a large number of aspirants who have no recourse but to vie as independent candidates. The jury is out on the issue.
The report records a substantial drop in the number of lives lost compared to 2017. However other violations such as assaults, intimidation, harassment, voter bribery, and misuse of children in elections are still a grave concern. One particular disturbing observation is the increase in civilian misuse of firearms which contributed to at least 70% of the deaths and assaults recorded. A new phenomenon not previously observed was the violence inside tallying centres which majorly targeted election officials.
Another positive noted in the report, is the level of tolerance and restraint exhibited by members of the public throughout the election process and especially at the very sensitive time of the announcement of the Presidential result. Compared to 2017, there was a substantial drop in civilian unrest and violence as a result of the electoral process and Presidential result. This inspite of the highly polarized campaign environment.
Areas that still need reform and/or attention include voter education, voter apathy/turnout, voter registration, need to ease transfer of vote, training of polling station officials, political party formations and nominations, enforcement of election offences provisions, building trust and confidence in the election process and timelines for conclusion of cases and enacting legislation that affect elections. Approximately over 8 million registered voters did not participate in the polling process, a worrying trend that needs to be probed further for the sustenance of our democracy. The Commission takes cognizance that voter registration exercise was well conducted by the IEBC to increase the number of voters. This positively increased from 19,611,423 voters in 2017 to 22,120,458 registered voters in 2022, an increase of 1,031,645 voters.
The Court's jurisprudence evolved in the 2022 Election cycle as attested in our report albeit some Court decisions being given very late with full knowledge of their impact on the planning and logistics of the elections by IEBC.
The Commission however notes with concern retrogression on the two-thirds gender principle through a High Court judgment that suspended a decision by the IEBC to compel political parties to comply with the two-thirds gender principle in their nomination of candidates. This probably explains the number of complaints in the County Assemblies over the list of those declared nominated.
Ladies and Gentlemen;
Allow me at this point to now share our key findings. The Commission through its 150 monitors spread across the country, monitored and documented critical occurrences in relation to the 2022 election cycle.
- Right to Life: Article 26 of the Constitution not only guarantees the right to life for every person but also recognizes the sanctity of human life. The report documents a total of seven (7) cases of loss of life. This is a reduction from 2017 where ninety-nine (99) cases of death were documented by KNCHR. The seven cases captured in 2022 include, three (3) deaths which occurred during the campaign period and four (4) during and after the polls. These cases were reported in six (6) counties namely, Kisii, West Pokot, Trans Nzoia, Kisumu, Bungoma and Nairobi. Out of the seven (7) cases documented, two (2) were allegedly perpetrated by civilians, three (3) were a result of road accidents during political campaigns and post polls, and two (2) by unknown assailants.
- Insecurity: The Commission noted a rise in cases of insecurity in various parts of the country particularly in Lamu, Garissa, Marsabit, Baringo, Elgeyo Marakwet, Mandera, Nakuru, Turkana and West Pokot Counties. While the Government took measures to enhance security in these areas, the Commission notes that insecurity impedes citizens' democratic rights to vote and be voted for as provided in Article 38 of the Constitution. Further, the rights to association, assembly, movement, and expression are also impacted negatively and as a result, the Commission noted a reduction in campaign activities specifically in the affected areas and an increase in reported criminal cases.
- Threats, Harassment and Intimidation: The Commission monitored inflammatory speeches in political gatherings and the media, and documented 49 cases of threats, harassment, and intimidation. Such utterances disenfranchise people of their constitutionally guaranteed rights by creating fear amongst voters and threatening peace and stability.
- Presence and Conduct of Security Officers: The Commission noted adequate presence of security officers across the country during campaign events and at polling and tallying centres. Security personnel responded to incidents swiftly and in a timely fashion, de- escalating violence and restoring peace where there was unrest. The Commission lauds the Inspector General and his gallant officers drawn from across various security agencies for the meticulous deployment and for exercising restraint in the use of force during the management of crowds. This may be attributed to the timely training of security officers on public order management and the responsible use of force and firearms during crowd control.
- Disruption of Legal Political Activities: The Constitution of Kenya 2010 guarantees every citizen the right to peacefully assemble and participate in activities of a political party. Political campaigns are fundamental in advancing the ideologies of candidates. During the campaign period, the Commission documented 51 Cases of disruption of legally organized political gatherings.
- Inducement and Undue Influence of Voters: Elections are the litmus test for a true democratic political system. Democracy is thwarted if the will of the people is either bought or manipulated through inducements. The Elections Offences Act 2016 prohibits any form of inducement of voters to either attend, participate, or refrain in any political activity. During the monitoring exercise, the Commission documented 193 cases of inducements and undue influence of voters. 182 cases were attributed to the campaign period while 11 were observed on polling day. Some of the forms of inducement observed included the distribution of branded relief food and money during the campaign period. The inducement mainly took the form of basic commodities including flour and water.
- Misuse of Public Resources: Misuse of public resources to advance the political interests of a particular group or individual to the exclusion of others is a breach of public duty. The Elections Offences Act 2016 bars the use of public resources in political activities as it accords one party an unfair advantage. Whereas it is a political right for public servants to associate themselves with the ideals of a political group; the law prohibits the utilization of State-allocated resources to advance personal political interests. The Commission documented 44 cases of misuse of public resources in political activities at both the National and County levels, giving some candidates an unfair advantage over others.
- Access to Polling Centers by Observers: The presence of observers at the polling stations plays a crucial role in assuring voters, candidates, party agents, government, and the public of the credibility of the election process. It increases public confidence in the process and offers an accountability tool for IEBC officials and other stakeholders. Despite the accreditation by IEBC, the Commission recorded instances where observers were denied access to either the polling stations or tallying centers.
- Opening and Closing of Polling Stations: The Commission noted some administrative challenges in the deployment of polling materials which affected the opening of some polling stations. To this end, the Commission documented 53 cases of late opening of polling stations, 11 cases due to failures of the KIEMS kits while 42 cases were as a result of delayed delivery of polling materials. Consequently, this led to late closure of these polling stations with the Presiding Officers extending the closing time to compensate for the time lost during opening.
- The Performance of the KIEMS Kits: The use of the KIEMs Kits in the identification of voters as well as transmission of results was a highly contested issue in the 2022 General Election. The Commission noted the back and forth discourse on the extent to which technology was to be deployed. The Court finally issued last-minute orders and directives allowing IEBC to resort to manual identification if and when there were challenges with the kits. Due to recorded cases of KIEMS kit failure on the polling day manual registers were used. The Commission noted disparate approaches in use of the manual registers. Older persons and people involved in manual labour were the most affected. The KIEMS kit failure in these instances can be attributed to the fact that the indentations on fingerprints usually wear out with age and hard labour.
- Safety of Polling Materials and Officials: The Commission noted with great concern the rising trend of blatant disruption of the electoral process and the incidences of violence against IEBC officials at the Constituency and National tallying centers. The law allows for aspirants through their agents to observe the counting and tallying process. It is paramount that this right does not infringe on the work of the election officials. The Commission documented 33 cases of violence targeting poll centers and officials in various parts of the country. These cases include altercations between opposing political factions; misuse of firearms by civilians as documented in Bungoma, Busia, and Siaya counties; physical violence; and; destruction of election materials as witnessed in Mombasa. These confrontations resulted in physical injury to civilians, security personnel, and IEBC officials in Kakamega, Mombasa, Nairobi and Wajir Counties. In Wajir an election official had his leg amputated. Cases have also been reported of deaths and abduction of election officials. The Commission has consistently spoken out against and continues to decry the violence, intimidation, harassment, threats and intimidation of election officials. Such conduct impacts the integrity of the process.
- Conduct of IEBC Officials: During the election monitoring period, the Commission documented 28 incidences of election malpractices by IEBC officials. These incidents ranged from issuing of more than one ballot papers to voters and collusion with politicians during voting exercise. Incidents were also reported of non-election officials being found in unlawful possession of election materials. Incidents were reported in Kajiado and Nairobi.
- Affixing Results at the Polling Stations: Section 39 (1) of the Elections Act decrees that the Commission (IEBC) shall determine, declare and publish the results of an election after the close of polling. Regulation 79 (2A) of the Election (General) Regulations further provides that the Presiding Officer shall affix a copy of the declaration of the result duly signed, at the public entrance to the polling station or at any place convenient and accessible to the public at the polling station. This provision is not only mandatory, but it also places a premium on the public's ability to access all the results announced by the Presiding Officers within their respective stations. The affixing of the results form at the polling station facilitates the verification and increases transparency. In a departure from what was observed in 2017, forty- five (45) polling stations monitored in 2022 did not follow this legal requirement and did not affix and display the result forms at the polling stations.
- Right to Property: During the election monitoring period, the Commission documented 22 incidences of unlawful destruction of property. These incidents were witnessed in Nairobi, Murang’a, Trans Nzoia, Siaya, and Isiolo Counties. The protection of the right to property is guaranteed under Article 40 of the Constitution.
- Freedom of Expression: Freedom of expression is, indeed, a cornerstone of human rights and a pillar of free and democratic societies, as it supports other fundamental rights such as the right to information and to participate in public affairs. During the 2022 election period, KNCHR noted abuse of freedom of expression mostly on online platforms including social media platforms, mainstream media, blogs, and other channels through pseudo accounts and persons hired to propagate hate speech and/ or propaganda. The intention of such was to dis-inform and misinform the public to the disadvantage of rival political camps. The deliberate misinformation caused anxiety and fuelled animosity, intolerance and polarization amongst the citizenry. The report also captures two incidences, one in Kericho and the other in Kakamega where members of the fourth estate were either attacked or impeded in accessing polling stations.
- Misuse of Children: The Children Act, 2022 provides for child rights and the highlights the best interests of a child as a paramount principle when dealing with a child. Children are neither voters nor are they candidates to be voted for and thus their involvement in elections is not only undesirable but a violation of their rights. The Commission documented 163 incidents of children’s involvement and attendance in political activities, meetings, and campaigns. This is regrettable noting that these children ought to be in school or engaged in learning activities and not exposed to the potential risk or ills of political violence, foul language and uncouth practices. Parents should shield their children from such exposure.
- Access to Polling Stations by Special Interest Groups: The Commission documented cases of polling stations that were not accessible to persons with disabilities and older persons. For instance, in Gatina Ward, Nairobi City County several polling stations were on the first floor of a building with no lifts or ramps. Similarly, Muhuri Muchiri Polling Center in Kasarani and Ziwa la Ng’ombe primary school, Mombasa County were equally inaccessible to persons with disabilities. The Commission also noted that there were no voting materials to cater to persons with visual impairment or lower booths for voters with physical disabilities. There is room for improvement on rights of persons who are abled differently.
- Rights of Intersex Persons and Participation in the 2022 Elections: The Commission takes cognizance of the progress made by the Government towards the recognition, and protection of intersex persons and their involvement in all spheres of life like all other human beings. During the 2022 General election monitoring process, the Commission recorded two cases of Intersex persons’ who vied for the position of Member County Assembly one in Nairobi and one in Kisumu. The Commission acknowledges IEBC for supporting intersex candidates to get the relevant clearance certificates without questioning their gender. The Commission through the intersex persons’ implementation and coordination committee (IPICC) supported the two and facilitated their timely clearance by IEBC.
Ladies and Gentlemen;
I wish to conclude by stating that the report provides strong recommendations to duty bearers which if acted upon, will usher in a new dawn ensuring elections are held against a strong backdrop of rule of law, respect for human rights, progressive reforms and a peaceful environment.
I Thank You All.
Chairperson Kenya National Commission on Human Rights