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International Elections Observation: The lie of impartiality

In most elections in which International Observation is permitted the observers often find favor of the electoral management body even if an election is by all accounts shambolic. Colleagues have told me there are exceptions to this presentiment but having dabbled in international observation as part of the East African Community Presidential Election Observation Mission to Rwanda on the 4th of August 2017. I should say with authority that there are no exceptions.

International observation missions can be short term or long term and are conducted by intergovernmental and international non-governmental organizations guided by normative frameworks and principles. Guided by the provisions of the treaty, regional and international instruments the EAC are party to a document “The EAC Principles for Election Observation and Evaluation” which outlines the guidelines for EAC Election Observation Missions Code of Conduct for Election Observers. Passed in November 2012, this document outlines the scope of election observation missions, composition of the missions and responsibility of partner states among other provisions.

All observers are required to read and pledge to abide by the EAC Code of Conduct for Election Observers. Membership to the mission considers expertise in electoral processes, human rights, technical and political knowledge drawn on an equitable basis from election management bodies, the EA legislative assembly, the EAC secretariat, EAC ministries, national human rights institutions and civil society. Short term observer missions take 14 days and are led by an eminent personality who is a national of an EAC partner state. The promotion of a culture of credible, regular and transparent elections through observation is seen as crucial for strengthening the foundations of democratic governance.

A pre-deployment briefing for observers, checklists and refresher training prefaces the mission. The observers are called upon to respect the sovereignty of the host country and to ensure compliance with all national laws and regulations. They are also required to follow all instructions issued by the leadership of the mission over and above implementing the written and signed terms of reference. As I listened to international observers make their collective verdicts in Kenya after the August 8, 2017 General election in Kenya, I appreciated the constraints and the limitations within which this work is done. Even though the counting and tallying was still going on, these announcements were resolute, choreographed and fast but all were in character. It was very clear to me why international observer missions interpret their remit narrowly and end up appearing to be only defending stability and sovereignty of host countries.

Incumbencies in Africa I must add relish these two concepts – stability and sovereignty – and invoke them whenever foreigners or outsiders question their decisions. As guests of the incumbent government and the electoral management body international observers struggle to maintain an unobtrusive posture which is why the Kenyan observers were unable to look at qualitative electoral issues or process issues or qualify their verdicts as the electoral process was awaiting conclusion. It is possible to conclude at least for the intergovernmental observers from the continent that the real remit is hardly one of defending democracy as this appears antithetical to the interests of the mostly conservative African high profile politicians or diplomats. Let me explain this from the context of my experience in Rwanda.

The EAC must be applauded for coming up with an electronic real time reporting election tool that made it easy for observers across the country to report from tablets their feedback tailored to specific parameters that would be collated in a common server at the secretariat. This tool marked for me the difference that the EAC mission brings to observation although it could be improved with each experience.

Once we all turned in our data, we had occasion to congregate in Kigali to discuss and consider the preliminary report based on the analysis that the secretariat staff prepared from the findings and observations. The full day meeting was revealing as it was disturbing, there was no uniformity of opinion as to how to frame the varied findings, some voices felt we should avoid the dead talk about Rwanda’s modernism and confront the intractable challenges of elections in Africa by being ruthlessly honest but majority of the voices took the view that Rwanda had emerged from a very tumultuous past and with its post-genocide Constitution we can only say so much even if it looked like putting bandage on cancer. Remember former Vice President Moody Awori of Kenya was the head of mission and with a retinue of dyed-in-the-wool bureaucrats and diplomats the total bent of the group was to focus more on the superficial, the trivial and some sensational outcomes that masked the real lapses of the spectacle that was the Rwanda election.

Ultimately even with the very good data, the final analysis that then led to the preliminary report fell way below par and ended up pretty much as a water and milk affair. We actually did to Rwandese citizens what external auditors did at Enron, and that is to declare a clean bill of health to a very sick corporation.

Like our European colleagues international observers from the continent, stand accused of arriving in big cars, mesmerizing the countryside and cities, only to post a free and fair verdict no matter what they see or what follows and a good many of the elections end with controversy such as what ultimately happened in Kenya and indeed in Rwanda after Kagame was sworn in following reports that the state promptly arrested and charged Ms. Diane Rwigara on trumped up charges for having intended to run for presidency before she was blocked by the elections commission. In this regard ECOWAS appears to have some teeth when it comes to handling disputes arising after problematic elections and EA could learn something from them.

But what exactly went on in the analysis room at the Serena Kigali? On the electoral system, the dominant voices were unable to come to terms with the obvious reality that in a deeply divided society a first-past-the-post-system often produces exclusion and deeper inequalities; treating unequal people equally though a principle of democracy where the first past the post carries the day doesn’t heal a divided and wounded nation. The two candidates Frank Habineza of the Green Party and Felippe Mpayimana who was an independent ran against an incumbent President Paul Kagame of RPF who first is a military man and second a strong man who straddles Rwanda’s national life like a colossus and whose hand must have been present in the disqualification of three other candidates by the elections body.

These two fringe candidates were in my view either victims of the charade called elections or guinea pigs who only served to create a façade and fulfil the legal dictum of periodic elections, but the EAC honchos would hear none of this. For the EAC mission to fail to make serious observations on this matter meant that no youth or an upstart or a peasant would ever think of competing for office because they will be eliminated even before they start for lack of resources, lack of dealer networks, lack of connections and name recognition to mount a national campaign. Frank and Felippe met sneers and jeers even from ‘democrats’ among us and yet I think we should have applauded them for daring.

On media our observation was finally framed to suggest that there was coverage for the candidates, but a closer look revealed to me that all news items on the opposition and the independent were either a comparison that presented them as underdogs or as spectacle in not so presentable clothes speaking to children or interacting with small groups of people. The incumbent of course got most of the TV coverage complete with state colors that are synonymous with party colors and insignia. The incumbent enjoyed more coverage on prime time and the least the mission would have done is to present this imbalance but that too was considered obstructive and negative.

On police and elections, contrary to earlier perceptions that many had during the pre-mission briefing, we observed that the police were very professional, stayed far from the election room doors and maintained distance that was good enough to be a deterrent but also close enough to provide security. As for voter education I was taken aback by suggestions from the conservative voices that this should be presented as to only harp on the voting process, how to vote and the procedures for electoral staff. The hostility that met suggestions some of us pushed to have the mission consider recommending the need for broad based civic education that covers human rights, democracy and citizenship was nothing but baffling but then again the mission it should be recalled was top heavy with bureaucrats, politicians and civil servants whose divided opinion on citizen power that is expressed either directly by themselves or through elected/appointed representatives should have been self-evident. That the mission considered it untenable to tick off the NEC for excluding the only woman candidate as a result of a smear campaign in which state seemed culpable obviously exposed the complicity of the mission’s leadership.

Regarding election-day feedback, the meeting spent a woeful lot of time extolling the virtues of the brains behind the music and decor that redounded the credit of election venues. My take was and remains that unless this practice is backed by the election law and regulations it should be dispensed with altogether. The election-day cannot be turned in to a celebration and thus a cultural space since it ought to be a somber event that can allow a voter to make his/her decision without the fetters of any other noise. That day comes once in 7 years, it cannot be the day state also decides that it will choose songs for the voter. I contended at the meeting that it is conceivable that a candidate can petition the courts and blame the music for confusing his supporters. The financing of this fanfare should also be a matter for regulations as it has implications about perceptions depending on how this mobilization is done.

There was then the matter of voters who could not make it to the polling station at which they registered having the opportunity to vote provided they produced a letter to justify their inability to be at their designated polling station but wished to vote. Though intended to protect the right to vote, if it is not possible to cross reference from records that indeed this voter is registered in the polling station they claim to be registered in, this provision has potential to be abused and could either lead to people double voting or people not on the register getting the chance to vote. To purport as most among us did that providing the entire register to all polling centres is expensive sounded lazy to say the least. Our report should have canvassed this issue with such a level of detail.

My experience from this observation and the events that followed in Kenya days after made one thing clear to me, that if elections made a difference, they would be illegal in both countries. While Rwanda’s democracy was jolted by a constitutional amendment that staggered term limits to guarantee Kagame a hold on to power for 17 more years up to 2034, Kenya had undertaken intense and continuing legal and institutional electoral reforms. From my observation in Rwanda the 2017 presidential election was peaceful and colorful but cannot by any dint of imagination be said to have been fair or credible. Kenya’s election on the other hand was neither peaceful nor credible and as the Supreme Court would later find was marred by illegalities and irregularities. Interestingly observers in both countries posted free and fair verdicts, in spite of the voices like mine that pointed out the need to be objective, in the case of Rwanda and the many local observer voices in Kenya that questioned the opaque data that IEBC was feeding in to its public portal.

The international observers in Kenya held up the false ideals of impartiality and objectivity to mask their complicity with power and ended up with so much egg on their face and I imagine the reports they read must have come from backrooms such as the one I was in Kigali that was hemmed by treaty, codes of conduct and defense of peers, stability and sovereignty. Even if we were to accept that Rwanda is emerging from a post genocide epoch, her peers should at every opportunity available speak directly to her to avoid what appears to be “authoritarian modernization” just as Kenya’s friends must speak directly to her about “electoral authoritarianism”.

It may be the case that the EAC, AU and other observer missions need to rethink the concept of short term election observation to perhaps consider undertaking longer term election monitoring. Similarly for Kenya a country that has had only two credible elections in 50 years, the small imperceptible acts of defiance that the electoral theft has provoked will metamorphose in to a rebellion whose end historians will study for years. I will come back to the Kenyan electoral issues in another instalment.

 

By: Patrick Ochieng

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