November 29, 2013

Nina Corradini, Electoral Network Coordinator International Centre for Policy Studies Unit N0001, Westminster Business Square 1-45 Durham Street London SE11 5JH United Kingdom Dear Ms. Corradini: We, the undersigned, have learnt from a media report that Mr. Ahmed Isaack Hassan, Chair of the Kenyan Independent Electoral and Boundaries Commission (IEBC), has been nominated for your Electoral Conflict Resolution Award. We write to express our concern over this nomination, which we think is not deserved and risks devaluing your award and sending the wrong message on the transparent conduct of elections. It is misleading to credit the IEBC with the decreased incidents of violence that occurred this year. It is not that the IEBC failed to provide a potential trigger for violence in 2013, given its questionable handling of the electoral process, as detailed below. Instead, it is politicians who were deterred from inciting, organizing and funding violence because of pending cases at the International Criminal Court for the 2008 post-election violence. In addition, ordinary Kenyans were determined not to resort to violence. It is important to understand that the lack of violence is not the same as true peace. Crediting the IEBC with forestalling violence diminishes the importance of this difference. Public opinion polls held after the elections show a deep divide in Kenyan society, especially in relation to its views on the legitimacy of the most recent election. One poll found that over 95 per cent of those who felt the election was free and fair came from ethnic groups aligned to the victorious Jubilee Coalition while only 20 per cent of that group came from communities aligned with opposition candidates. Mr. Hassans handling of the 2013 Kenyan election did little to promote conflict resolution. His political biases, revealed during the Supreme Court hearings on the challenge to the presidential election, only reinforced these divisions. In his affidavit to the Court, Mr. Hassan described opposition presidential candidate Raila Odinga in the following way: [He is] adept at making others scapegoats for his failures and electoral defeats. He is a man used to ruining others as a sacrifice for his failures and electoral defeats. () It is high time we called a spade a spade as we deconstruct the issues that define the petitioners well-known pattern of refusing to concede defeats. Mr. Hassan also called Mr. Odinga self-centred, narcissistic, and ego-centric.

Such remarks, coming from the Chairman of an institution whose independence is critical, are clearly inappropriate and ill-judged. While the electoral process was relatively peaceful, in terms of the absence of violence, it was marred by a grave lack of transparency and several constitutional and legal problems related to the voters register, counting, tallying and results transmission. More than eight months after the election, polling-station results have yet to be released and 2,585 polling station tallying forms (known as Form 34) are still missing from the public record. These problems go beyond the threshold of acceptable electoral errors, constitute gross mismanagement of the electoral process and seriously weaken the legitimacy of the process over which Mr. Hassan presided. The Supreme Court of Kenya upheld the results of the presidential elections, but its decision leaves Kenya in a perilous position with regard to the transparency and verifiability of future elections. This is because the Court did not address much of the evidence before it on failures in the electoral process presided over by Mr. Hassan. The problems include: Voter Registration: to date, the IEBC has not released a conclusive, verifiable total number of registered Kenyan voters. Instead, it continues to release piecemeal, differing totals, with no accompanying explanation. Kenyans still do not know which register was used on Election Day. In fact, it is unclear if the IEBC succeeded at all in its effort to curb the types of illegalities that have marred past elections, such as double voting and voting by non-registered persons. An in-depth analysis of changes to the voters register also reveals distinct patterns of changes. Between December 2012 and March 2013, 66,990 voters were added to Rift Valley province, a stronghold of the Jubilee Coalition and 15,026 voters were removed from Nyanza province, a stronghold of the opposition CORD Alliance. Counting and Tallying: the forms used to record polling station and constituency-level tallies are inconsistent and beg questioning. Among the most serious problems noted during a court-ordered scrutiny of relevant forms were differences between the number of registered voters on the Forms 34 and the number of registered voters on the list of voters given to the judiciary by the IEBC, forms showing turnout of over 100 per cent, changes to results recorded on the forms without authorizing signatures and forms which were absent from the record. In addition, many of the constituency-level tallying forms (Form 36) did not reflect the results as shown on the corresponding Forms 34. Given that the victor won by a margin of less than 1% of the votes cast, these problems warrant explanation. Under Mr. Hassans leadership, these issues were compounded by the failure of the electronic voter identification devices, meant to identify registered voters through fingerprint identification, and the electronic results transmission system, which was to provide the Kenyan public with provisional results, submitted from the polling stations through a secure mobile phone network. The failure of these two technological systems

left Kenyans without a check on the manually recorded results. Thus, there is no way to verify the numbers the IEBC has released. As part of its judgment on the presidential election petition, the Supreme Court of Kenya ordered an investigation of the IEBCs procurement of biometric voting technology. As a result of that investigation, James Oswago, the CEO of the IEBC, was arrested at the end of October 2013 for his alleged role in criminal activities related to the procurement process and for abuse of office. Three other senior officials were also arrested. Their trial is set to begin in February 2014. It is instructive to note that this alleged criminal activity occurred under Mr. Hassans leadership of the IEBC. As the Returning Officer for the presidential results, Mr. Hassan is personally responsible for addressing the questions raised above. His failure to do so is a worrying signal of his low prioritization of transparency. It also portends continuing drops in public confidence in the IEBC, which could spark violence in future closely contested elections. The ICPSs nomination of Mr. Hassan for the Electoral Conflict Resolution Award underrates the significant public polarisation in the aftermath of the election. It underestimates the importance of diminishing public confidence in the IEBC, which is no longer perceived as an impartial elections management body. This drop in confidence threatens its public legitimacy for future elections. It also grants international recognition to Mr. Hassan, who has done little to promote the kind of holistic conflict resolution that can lead to true and positive peace, and who, especially in light of his revealed biases, lacks broad, domestic public credibility. This conferring of international legitimacy risks endangering the impact of Kenyan civil societys efforts to demand accountability for the issues raised above and to work towards the implementation of electoral reforms ahead of the next election. Finally, Kenyans demand and deserve more than peace. A just peace, one that is based on truth and accountability related to the questions still surrounding the 2013 election, is critical to true conflict resolution and peaceful elections in the future. We would be pleased to provide you with further or more detailed information, should you so wish. Yours sincerely, Mrs. Dommie Yambo-Odotte Senior Media Advisor, Development Through Media Sir Mohinder Dhillon P.O. Box 781 Nairobi 781-00606 Ken Flottman Ali Hersi
3

InformAction Wanjiru Gikonyo National Coordinator, The Institute for Social Accountability (TISA) George Kegoro Executive Director, International Commission of Jurists-Kenya (ICJ-Kenya) Njeri Kabeberi John Mulingwa Convener - Kamukunji Youth Congress Tazim Elkington Paradigm Shifter, Trainer, Writer, Speaker, Poet and Qreator of the 'Q Factor' Atsango Chesoni, Kenya Human Rights Commission Members of Kenyans for Peace with Truth and Justice (KPTJ), including: Bunge la Mwananchi Centre for the Development of Marginalised Communities (CEDMAC) Centre for Law and Research International (CLARION) Centre for Rights, Education and Awareness for Women (CREAW) Coalition on Violence Against Women (COVAW) The Cradle-The Childrens Foundation Constitution and Reform Education Consortium (CRECO) Fahamu Foster National Cohesion (FONACON) Gay And Lesbian Coalition of Kenya (GALCK) Hema la Katiba Independent Medico-Legal Unit (IMLU) Innovative Lawyering International Centre for Policy and Conflict (ICPC) Kenya Leadership Institute (KLI) Kituo cha Sheria Katiba Institute The National Civil Society Congress National Convention Executive Council (NCEC) RECESSPA Release Political Prisoners Trust (RPP) Ochieng M. Khairalla CEO, 4Cs Trust-Kenya Tuitakayo

Maina Kiai Edwin Kiama Al-Amin Kimathi Davinder Lamba Mwalimu Mati CEO, Mars Group Kenya Grandmaster Masese Poet, musician Zahra Moloo Godwin Murunga Eric Gitari National Gay and Lesbian Human Rights Commission, KE Kimani Nyoike Geoffrey Birundu Chairperson, Organization for National Empowerment (ONE) Haron Ndubi Susan Onyango Shailja Patel Editor, #KenyaRefuses, The New Inquiry Zarina Patel Zahid Rajan David Onyango Oloo Sankara Centre Dr Anders Sjgren Department of Political Science Stockholm University Sweden Dr. Radha R. Upadhyaya
5

Njoroge Waithera Muthoni Wanyeki Department of Politics and International Studies School of Oriental and African Studies (SOAS) Africa Centre for Open Governance (AfriCOG)