States what Nigeria can learn from E/African nation

By Charles Kumolu, Deputy Editor

The recent presidential election in Kenya turned out to be an instructive exercise for Nigerians considering that 2023 polls are less than six months away.  Director of  Programs, YIAGA Africa, Cynthia Mbamalu, who was part of an observer mission, in this interveiw,  speaks on lessons for Nigeria as it commences a defining election circle.

You were part of the former President Goodluck Jonathan-led EISA  observation mission  that monitored the presidential election in Kenya. The poll generated a lot of interest in Nigeria, especially the outcome. Narrating your experience will be helpful as Nigeria prepares for a  defining general elections next year…

I want to highlight the fact that we have some experiences and similarities with Kenya. For instance, Kenya returned to multiparty democracy in 1992 because it was a one-party state for a long time. It also has British colonial history like Nigeria. We returned to democracy in 1999, a few years after Kenya. But they had several periodic elections until 2010 when they had a review of their constitution, which gave them a new constitution that was quite progressive. It provided specific progressive provisions around election administration and management, things around the independence of their judiciary and progressive provisions around inclusion. When it comes to the electoral system, the Kenyan constitution provides for two third gender rule for women’s inclusion. 

They also have a unique system that provides special seats for youths, women and people with disabilities. Nigeria is yet to get there on inclusion. However, Nigeria has also been on several constitution amendments. In 2018, there was an amendment to reduce the age for more youth inclusion with the passage of Not too Young to Run Act. But that can’t be compared with special reservations for women and young people in Kenya, but that was a progressive amendment. If we want to look at the context, the electoral system context,  in Kenya also has the  first-pass -the post  system  for presidential election. It is based on a two-round majoritarian system. For parliamentary election, Kenya . has a hybrid of single member majoritarian system and proportional representation.

Can you expatiate bearing in mind the Nigerian system?

To win the presidential election in Kenya, you need to win 50 percent plus one of the majority votes and you need to have a spread  of 25 percent in each of more than  half of the counties.  In Nigeria, you need to have at least 25 percent of the vote cast in two-third majority of the states. In Kenya, you need to win in at least each of more than half of the counties.  That is  in addition to the 50 percent plus one.  

That is the general context for the election. But it is a competitive system like ours. One of the things I observed in the electoral process was the freedom of alliance and realignment of political interests. You had an election where the Vice President was a candidate but didn’t have the support of the President. Rather, the President had a handshake with the one-time opposition leader, Raila Odinga, who he had contested against in their previous elections. What they had was meager. 

The President and Vice President are from the same party. Normally, you would have expected the President to support the vice. But what we saw was the Vice President running on the platform of United Democratic Alliance. He had the support of the Kenya Kwanza Alliance. Odinga who was in the Orange and Democratic Movement was backed by the Azimola Coalition, with President Kenyatta of the Jubilee Party backing him. You could tell already from the realignment how competitive the election would be. It was a two-horse race although there was an emerging voice called George Wajackoyah, who had a campaign around legalizing marijuana. And his campaign attracted the interest of young people. But if you look at the election, it was substantially a two-horse race, which is what we usually have in Nigeria. In the Nigerian context, it is usually between the All Progressives Congress, APC and the Peoples Democratic Party,PDP. However, the context would be different in Nigeria in the next elections. 

What about the electoral commission?

The election was competitive in the sense that the Independent National Electoral and Boundaries Commission, IEBC, knew it had an important role to play in ensuring that the process was transparent. Not just transparent but seen and perceived to be transparent and credible. In a competitive and contentious election, one thing you need to do is to ensure the process meets standards and meets integrity tests when it comes to election integrity. It had a responsibility to ensure due process was adhered to. The context in Kenya was that the IEBC was also suffering from trust deficit, the same way people question the integrity of the Independent Electoral Commission, INEC. If you may recall, the last election in Kenya was nullified. The IEBC was under fire as a result of that. It had to rebuild trust with this election that was a make or mar. There was a lot at stake for the electoral commission. It had to rebuild trust with the election.

Legal framework

Beyond being contentious, the election was also a test for the electoral commission on how it would implement the legal framework and conduct the election to make it acceptable. There were also projections that because it would be contentious, there was a likelihood that none of the candidates would win the majority votes. There was also the likelihood that with the deployment of technology, there were possible challenges, which was one of the grounds for post-election petitions. If you ask me what the learning from Kenya is, the first for me is around election administration. More or less, the Independence of the electoral commission and its ability to deliver transparent elections is one lesson. That was very important. In the case of Nigeria, I know that 2023 elections would be competitive. And there is a likelihood of a third force with the emergence of Peter Obi and the obedient movement. When you consider the Tinubu and Atiku factors, the process would play a major role in determining the acceptance of the election’s outcome. And that was what played out in Kenya because beyond just being competitive, there was also the issue of trust given that their last election was nullified by the court and they had to go back to the polls. 

What were the things that worked for the commission?

I think issues around clarity of the legal framework for the election and the intentionality to audit the voter register before the elections. They had a voter register audit that was done by the IEBC. KPMG had also conducted the audit of the voter register before the election because they also had done a registration process and added new voters. Nigeria is bigger than Kenya and our numbers are higher. There was that thing about having a reasonably clean voter register before the election. That was because the credibility of the voter register goes a long way to either contribute to the electoral process or negatively impact the credibility of the electoral process. It is the same in the Nigerian context, especially because we had continuous voter registration. And it is the responsibility of INEC to ensure that we go into the election with a reasonably clean register that is properly audited beyond just the internal audit. What INEC does here is the Automated Biometric Identification System. What it does is to clean up the register using the biometric on issues around multiple registrations. 

Multiple registrations

Beyond that, it is a lot more than removing multiple registrations. On technology, it is one thing to deploy technology but deploying it effectively is what matters. And this is related to the Nigerian context because, with the new Electoral Act, technology would play a more critical role in our elections. We already have that in biometric registration. It would be deployed for accreditation of voters in Nigeria. And this is the first time we would be having general elections where the law mandates the use of technology for accreditation. In this case, it is the use of BVAS, Bimodal Voter Accreditation System. In Kenya, it is the KIEMS. They called it the Kenyan Integrated Electoral System Machine. Technology played an important role in their election. But it is not about deployment, how well did it impact the process? I didn’t go as an independent observer. I was part of the EISA Election Observation Mission. EISA means Electoral Institute for Sustainable Democracy in Africa. It was an election observation mission led by former President Goodluck Jonathan. He was the Head of Mission. In the polling units I visited, we observed that KIEMS was deployed and in the administration of the election, it was used in all the polling units I visited. There was no option of not using the KIEMS to identify the voters. The device was also used to upload the result to the portal. It was used to accredit, authenticate the voters, upload the result to the result portal and transmit the results.

In Nigeria, there are issues around the capacity of technology to cover every area, in Kenya, was the KIEMS technology deployed to every part of the country?

It was deployed to every part of Kenya because it is in their law. And one of the things we would be looking out for in the Nigerian election is the issue of trust. As I said earlier, the issue of trust in the Kenyan electoral commission inspired a large level of compliance. Trust is founded on several factors. And what are those indicators that can guarantee trust? There was compliance with the legal framework. Not just compliance alone, there was uniformity in application of the legal framework. If voters accept compliance, due diligence and uniformity in applications, it begins to inspire trust. One of the things that creates mistrust in the system is when they believe different rules apply to different locations, especially in a diverse country such as Nigeria where you have regional diversities. 

If people believe that technology was deployed in some regions while it wasn’t in others, it creates mistrust in the system. Kenya also has ethno-regional dynamics like Nigeria although ours is more diverse. But if you may recall, the electoral violence Kenya experienced in 2007 was on ethno-regional grounds. Because they have that background and ethno-regional dynamics in their polity, it also means that in the application of the rules and compliance, there was a need for uniformity. I am hammering on this because once people believe that different rules apply to different people, it creates mistrust. And the electoral commission cannot afford mistrust in people. The commission must inspire that confidence in anything it does. We saw compliance in applying the rules in Kenya and uniformity. While there may be some places where the technology malfunctioned, deployment wasn’t a challenge. 

If you followed the court decision on the election, it was also highlighted that there were polling units where the technology didn’t function properly or had some issues. However, it was not substantial enough to overturn the outcome of the election. We are hoping that in Nigeria, the deployment of the BVAS would be in every part of the country. Now, our law makes it compulsory that where the BVAS is not deployed, voting cannot take place on that day, polls would be rescheduled for the next day. And if the BVAS is not deployed, there can’t be results from those areas. Our new electoral law makes it compulsory for accreditation of voters with the technological device. 

Court judgement

You can’t talk about the Kenyan election without talking about court judgement on the election petition. Issues around technology were one of the issues that were up for contention. And if the EIBC had faulted or failed in the deployment of the KIEMS , that would have been a ground to overturn the election or better still question the electoral process. You could see how that supported the upholding of the election. 

The other part for me beyond compliance, which is also important in Nigeria, is the upload of the result because the result process is critical in the election. You cannot talk about the process without the outcome and the outcome is determined by how effective and efficient the result management is on the part of the electoral commission. Now, what would be the consideration in the result management? Would the BVAS be used to upload the result on the result portal? What are we going to be looking out for? Every polling unit is expected to have its result on the result portal at the close of voting at the polling unit level. Even if there is a delay on the upload, it should not exceed hours. The moment you cannot prove that results were uploaded on the portal, it creates room for doubt. What we saw in Kenya was that when it came to result management, their technology was used after the counting, collation and recording of results on the result sheets. The results were captured and uploaded on the public portal and were transmitted in real time. 

While they had the technology, the manual process still exists to complement the electronic. That was why it took almost seven days for the result to be announced. One of the grounds for challenging the outcome of the election in court was whether there was a difference between the results uploaded and those received at the national tally centre. In assessing that particular issue, there were no discrepancies found in locations where it was alleged. There were no discrepancies with the results transmitted and uploaded. In our case, it is Form EC8A, which is the result sheet at the polling unit. What is expected is that the Form EC8A uploaded at the polling unit should be the same Form EC8A transmitted at the ward level.

Compliance

Another lesson was compliance to ensure the same results were uploaded and made the system more transparent. And it supported the claim that due process was applied to result management. It cleared the all-atom of doubt whether there was compliance or not. In my history of working on elections in Nigeria, I found out that one of the reasons people do not trust the result is that they do not believe the results at the polling units are the same collated and finally announced. 

Therefore, if we can solve the problem by ensuring that election results announced reflect the result at the polling unit, we would inspire confidence. And how do you achieve that? It is by ensuring due compliance with what the electoral law says. So, everything is about compliance with the rules governing the election. And that was major learning from Kenya. We have INEC improving with the two recent elections in Osun and Ekiti and we hope that would be done at the national level. There should be compliance across board because the 2023 elections are already competitive. Beyond the parties, there are also regional dynamics that are going to determine a lot of things. Another thing I learned from Kenya is that perception may not be everything. If voters perceive the system as flawed, they will never trust the outcome. But if voters perceive transparency, they can easily accept the outcome of an election.

Participation

The other learning for me is about the importance of promoting participation in a democracy. It is about the freedom of the citizens to participate in choosing their leaders. Democracy is about freedom. Kenya has made progress in their legal framework. Their system promotes inclusion. I look at inclusion from different perspectives. In the voting process, we saw voting rights expanded to Kenyans living in the diaspora.

 Kenyans in prisons also voted. I believe it is important Nigeria starts looking at how to expand voting rights. It shouldn’t just be for Nigerians in the diaspora and prisons alone, but also election day workers. In Nigeria, you only vote where you registered. So, a lot of Election Day workers do not vote. That is one layer of inclusion. The other layer is gender inclusion. This would create opportunities for more women to be represented. The progressive law that provides reserved seats for women in parliament, young people and people with disabilities is learning from Kenya. The timeline with which the judiciary delivered its judgment was a major learning. Election was on August 9, 2022, the Supreme Court gave its judgement on the election on September 5. 

Courts

The time  the petition was filed and the period the case was decided were instructive enough. I wish our judiciary has  

some level of independence. As elections become more competitive and contentious, we would see the courts playing more roles in our elections. It was such that anyone conversant with the process would know that the court had acted independently and fairly without fear or favour. It was not a situation where the result was overturned on the eve of swearing-in as we had in Bayelsa in 2019. In Nigeria, we need to ensure that in the next elections, the courts do their jobs without interference from government and other external factors. We must also ensure that in playing their role, the courts must act as guardians of our democracy. They must understand that their decision would either boost our democracy or undermine it. I love the way the court delivered its judgment in Kenya and the reasons given for every decision on the petitions. For every allegation made, IEBC provided evidence. 

In Nigeria, for instance, if our elections end in court, whether national or subnational, we need to ensure the court acts as a defender of democracy by placing the sovereignty of the people above any other interest. The Kenyan Chief Justice in her judgment, said ‘’The sovereignty of the people of Kenya is paramount to every other.’’ She was referring to the disagreement among electoral commissioners on the outcome. Before the result was announced, national commissioners said they would not take responsibility for the result announced. 

The judge said the sovereignty of the people supersedes boardroom disagreement between national commissioners. He said provided there was compliance and due diligence, when it comes to ruling on an election, you have to think about the people of Kenya first. That was instructive because here we have courts of coordinate jurisdiction giving all sorts of judgment. Sometimes the reasons of the courts are not properly founded in law and both the letters of the constitutions. They make you question the integrity of the court. And we can no longer build our democracy in a place where the court isn’t seen as the last hope of the common man. They must safeguard democracy. That way, whoever reads court judgment on electoral matters, the person may not question the integrity of the decision. 

In Nigeria, incumbency plays a role in who wins an election given that state machinery is often deployed. Did that play a role in Kenya?

When you build strong institutions, they become the guardians of our democracy. The institutions get the system to work. But we are not there. We are yet to get to the point where we see the security agencies as institutions created by the constitution and not just one headed by someone appointed by the President. Allegiance should be to the law and not persons. When institutions are stronger it reduces excesses of incumbents who would want to manipulate the system. 

That was what worked in Kenya. What I found instructive is that if you build strong institutions, it is easier for the system to work. The other part is participation. It is easy to manipulate a process where turnout is low. And that has been the dilemma of Nigerian elections. We still battle with low turnouts, especially in competitive elections. In Kenya, I found it interesting when the court said the turnout was the lowest since their return to multiparty democracy. I was wondering because I felt the turnout wasn’t low. 

They had about 65 percent turnout. Now, in 2019, Nigeria had 35.6 percent. If you are comparing the voter turnout, Kenya had 65 percent and it was seen as their lowest turnout while we haven’t had such. We are yet to get there. It is enough to build strong institutions, It is enough to budget sufficiently for elections to reduce the loss. If the people are not participating, the efforts invested will not yield the desired outcome. Participation in elections matters most. 

It doesn’t make sense that our current President was elected with barely 15 million registered voters in a place with over 84 million registered voters in 2019. And this is a country with a projected population of about 200 million people. When you think about that it is just a tiny percentage. It even raises questions about legitimacy. If a tiny percentage is coming out to vote, there is a bigger problem. In Kenya, it was said the election was expensive. However, we spend billions on our elections. 

About N305 billion is what is budgeted for our elections. You plan for elections based on the number of registered voters. If the projection is that over 90 million will vote, INEC will plan based on that number. Ballot papers would be produced for every registered voter. If for instance, only 35 percent of that number turned out to vote, you can imagine the amount of waste. The total number of votes cast in 2019 was 28,614, 190, and INEC planned for 84 million. INEC also provided extra materials in its planning. But only a tiny percentage participated, leading to massive waste of resources. If we truly want to improve our lot as a people, we must increase our turnout. In Kenya, not all registered political parties participated in the presidential elections. Parties participated in elections according to their strength. There were reports of inducement but that was before the election. On election day, there was nothing like inducement of voters. This is something Nigerian politicians should learn. We didn’t see vote buying on election day. Polling units opened at 5 am and there was no restriction of movement on election day. The election was on a Tuesday. Voting started at 5am and ended at 5pm. 

Disclaimer

Comments expressed here do not reflect the opinions of vanguard newspapers or any employee thereof.