Cablegate: Kenya: By-Elections First Test for Iiec

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1. (SBU) SUMMARY: On August 27 the Interim Independent
Electoral Commission (IIEC) held two by-elections for
vacant parliamentary seats. The elections in Bomachoge
(Nyanza Province) and Shinyalu (Western Province) were an
important first test of the IIEC's capacity to organize an
election and curb election malpractices. The IIEC was
largely successful on the first count as observers
reported that the voting and tabulation processes were
generally credible and transparent. The IIEC was not
successful in curbing "old school" electoral malpractice
by candidates as observers witnessed numerous instances of
apparent voter bribery. END SUMMARY.


2. (SBU) The August 27 by-elections in Shinyalu and
Bomachoge were the first major task faced by the Interim
Independent Electoral Commission (IIEC). Sworn into
office five months late on May 8, the IIEC had just four
months to organize the by-elections. Prior to the
elections IIEC commissioners outlined for donors a number
of challenges they faced in preparing for the by-
elections. The IIEC began its work with staff
inexperienced in running elections because all
commissioners and staff of the former Electoral Commission
of Kenya had been dismissed. In addition, the IIEC is in
the midst of drafting proposed reforms to Kenya's
electoral law, but was obligated to administer the by-
elections under the old electoral framework.

3. (SBU) The IIEC undertook a month-long registration for
the by-elections in July, a process that removed duplicate
and deceased voters from the rolls and required residents
to re-register and receive a new voter card. Voter
disinterest and the removal of names from the 2007
register resulted in substantially lower figures for the
2009 register: a 44 percent decrease in registered voters
in Shinyalu and a 23 percent decrease in Bomachoge. As
observers noted in the field, the IIEC's registration
process was considered cumbersome by voters and some
individuals received new voter cards but were not listed
on the register and thus disenfranchised.

4. (SBU) The logistical preparation for and administration
of the by-elections by the IIEC was generally competent.
The IIEC exchanged returning officers and polling station
clerks between Shinyalu and Bomachoge the day before the
election in a bid to frustrate efforts by candidates to
bribe these officers; however, the swapping of local
election officials generated protest from candidates and
also some staffing gaps as Bomachoge has 130 polling
stations to Shinyalu's 80. Nevertheless, materials were
distributed through the night on the July 26 and most
polling stations opened by 6:30 a.m. on election day.

5. (SBU) Voting proceeded slowly but peacefully with a few
reported irregularities in both constituencies.
Candidates filed complaints that party agents in some
stations were removed from the polling station, and
observers noted that in some instances illiterate voters
were assisted by polling station presiding officers
without the presence of party agents as required by Kenyan
electoral law.

6. (SBU) The most common problem, present at nearly all
polling stations, were voters holding newly issued cards
whose names were not on the register. Polling station
officials did not receive timely or clear guidance from
the IIEC in how to resolve this problem. Though IIEC
commissioners attempted to address these issues by driving
the master register to affected stations late in the day,
it was physically impossible to reconcile all cases. The
problem affected approximately 1,000 voters in Bomachoge
and 300 in Shinyalu. It is possible that the
disenfranchised voters could have changed the outcome in
Bomachoge, where the Orange Democratic Movement (ODM)
candidate won with a 700 vote margin.

7. (SBU) The vote tally in both constituencies was slow
but generally transparent. Votes were counted at polling
stations with party agents present in nearly all cases;
the boxes were subsequently resealed and transported to
the tallying centers where results were entered into a
publicly displayed Excel spreadsheet. Disputed votes were
adjudicated at the tallying center in the presence of
observers and party agents. With the exception of the

NAIROBI 00001855 002 OF 003

Party for National Unity (PNU) candidate in Bomachoge, all
parties agreed that the tabulation process was credible
and fair. The PNU candidate expressed concern about the
results from several polling stations and at one point
requested a recount, but did not formally contest the
final results.


8. (SBU) Despite the procedural integrity of the by-
elections, the process was undermined by voter bribery and
intimidation by candidates, behavior which the IIEC was
unable to discourage or penalize. Interviews with all
major candidates in Shinyalu the day before the by-
elections revealed that candidates were not running issue-
based campaigns; rather, each made the case to voters that
they were best placed to funnel state resources to the
constituency. Observers and residents reported that
candidates sought to undermine turnout in competitors'
strongholds by purchasing voter cards ahead of the
election, and one held traditional "oathing" ceremonies in
which voters were intimidated into pledging support for
the candidate. On the day of the election, several
candidates hired agents to dispense cash in return for
promised votes; apparent vote buying operations were
present near the entrances to polling stations. In
Bomachoge, the PNU candidate told us he believed the ODM
had compromised the deputy returning officer.

9. (SBU) IIEC officials did not have the capacity to
address the reported malpractices. Each polling station
was assigned two police officers, and while some arrests
for voter bribery were made, as a whole the officers did
not actively investigate allegations. In some cases the
police refused to arrest corrupt party agents when ordered
to do so by the IIEC. IIEC commissioners expressed
frustration that while they received reports of
malpractice before and during the election, current
electoral laws do not allow them to arrest, prosecute, or
bar candidates without a court order.

10. (SBU) It is unclear whether these malpractices altered
the outcome of the election. In Bomachoge, where the ODM
candidatewon with just 700 votes more than the PNU
candidate out of approximately 35,000 votes cast, it is
possible that voter bribery and corrupted officials in a
limited number of polling stations influenced the election
in favor of ODM. In Shinyalu, the two parties most
extensively engaged in voter bribery (PNU and KADDU)
finished well behind the ODM candidate, who received
approximately two-thirds of the vote.


11. (SBU) Despite some disorganization and some isolated
incidents in which polling station officials disregarded
protocol, the IIEC demonstrated adequate capacity to
organize the by-elections and political independence in
adjudicating disputes. Procedurally, the IIEC will need
to improve the registration process so that the voters
issued new cards are properly registered at their assigned
polling station. While commissioners were present and
responsive to registration and other problems during the
by-election, they were unable to communicate efficiently
decisions to the polling station level or to resolve the
problems even through direct intervention. As
commissioners will not be present in constituencies during
the constitutional referendum, it is imperative that, in
addition to procedural changes to the registration
process, the IIEC must hire an effective secretariat in
each constituency that is able to resolve problems on the

12. (SBU) Legal reforms will also be needed to both
update electoralprocedures and strengthen the IIEC's
capacity to investigate and prosecute corrupt candidates.
The IIEC is drafting proposed reforms which will permit
the introduction of electronic voting and tabulation
systems. In addition to procedural improvements we will
recommend that the commissin seek a legal mandate to
investigate, prosecute, and bar candidates suspected of
engaging in electoral malpractices. The commission will
need to work closely with the Committee of Experts on the
Constitution and legal affairs committees in Parliament to

NAIROBI 00001855 003 OF 003

marshal support for the proposed reforms. END COMMENT.


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