EU election observers play vital role

Critics have noted that all election observer missions on the ground, including the EU mission, provided relatively positive initial post-election statements on the process, released prior to the completion of the tabulation process.

The perception of many critics after the Supreme Court decision is that the EU and other missions were supporting the incumbent through their statements, and ignoring the election's flaws.

The murder of a key election official in charge of the electronic tabulation system, just prior to the election, only reinforced this viewpoint.

At a moment of high emotion, it is important however to consider the facts, rather than be carried away by perception.

The court decision should not mean a wholesale dismissal of the findings of EU and other election observers, and call into question more broadly the basis for international election observation.

Facts

Let us carefully examine the facts.

The court did not question the results.

Although we cannot be certain without the final detailed ruling, the Supreme Court does not appear to cast doubt on the outcome itself, but rather on problems with the electronic results transmission system.

As the official results showed the incumbent Uhuru Kenyatta 1.4 million votes ahead of Raila Odinga (a wide, 10 percent margin of victory), it is rather unlikely that the outcome would be affected by any flaws in the transmission process, especially as the results announced were based on the tabulation of paper forms at the constituency tallying centres.

Typically courts nullify elections only if there is evidence that the outcome would have been materially affected by identified irregularities.

Observers did not rubber-stamp the elections. While the EU's observer mission, as well as others, gave a cautiously positive assessment of election day in its preliminary statement released 48 hours after elections, it also provided plenty of criticism on various aspects of the overall election process to date.

At that stage, the EU mission deliberately refrained from commenting on the tallying process, as it was only just beginning, and noted this in its press conference.

The EU mission's concern regarding the lack of transparency in the results transmission - necessary for checking the veracity of totals - was demonstrated later in its statement on 16 August urging the Independent Election and Boundary Commission (IEBC) to publish all result forms.

This is essential for checking the results and to enable all stakeholders, not just parties, to file petitions. The mission's final report will also undoubtedly critique the electronic tabulation system.

Reports that observers rubber-stamped the election are simply untrue.

Threat of violence

Prevention of electoral violence was a priority.

Of course, following the post-election violence that followed the 2007 election process, international and national actors alike have been concerned not to see a repeat of the violence and have taken steps to mitigate this risk.

The joint statement on 9 August, of all international election observer missions present, showed their united commitment to the constitutional route, urging Odinga to seek redress through the courts rather than going to the streets.

The African Union election observation mission played a key role in this regard, bringing together all international observer missions.

Indeed, the fact that this case was brought to the Supreme Court at all is at least partially due to the successful efforts of international election observers.

The electronic tabulation process was always a concern. Although the court's detailed ruling has not yet been released, the preliminary ruling appears to cast doubt on the electronic results transmission system.

The electronic results transmission system was identified by many as a risk in the election process.

The international observer community has long cautioned that new technologies should only be adopted where there is political consensus on their introduction and then should be gradually implemented through pilot testing, which was unfortunately not the case in Kenya.

Observers have consistently called for more transparency in the process, and for accountability of external private vendors.

Paper trail

The paper trail is what counts.

In case electronic systems fail, it is the paper back-up system that provides a reliable tally of results. In Kenya, the back-up system for tabulation consists of the result forms that are sent physically from the polling station to the constituency tallying centres.

These paper forms were used as the basis for announcing official results totals.

Once concerns arose about the electronic results transmission, observation missions called for the release of scans of all result forms so that everyone could confirm the results, independent of the electronic transmission.

In addition to the aggregation of the result forms by the IEBC, Kenya's leading domestic observers, the Election Observer Group (ELOG), conducted a parallel vote tabulation - a statistical projection of results based on actual result forms - confirming the officially announced results within a percentage point.

This gave further backing to the officially announced results.

No election is perfect, and it is the delicate job of an observer mission to consider every election against international and regional standards, but also in its specific context.

An election observer mission may identify flaws in an election and still assess it to be credible and democratic. It is a formidable challenge to collect information from around the country and throughout the process and reflect it in a concisely written statement in a short time-frame.

Some commentators have said that releasing statements 48 hours after election day, when the tabulation process was not yet complete, was not responsible.

However, the EU and other observer missions emphasised that their statements were preliminary in nature and that their teams were continuing to watch the process unfold.

Time pressure

It is already difficult for international observers to wait 48 hours to announce their findings - as is common practice - as national and international media, as well as the public, are waiting impatiently for their assessments.

International media in particular tend to move on quickly after an election.

Diplomats and capitals also wait for the pronouncements of election observers before commenting on the process.

Election observer missions continue their work, however, with teams closely following post-election developments throughout the country, whose findings are reflected both in interim reports - providing periodic updates and final reports issued two months later.

All election observer missions present in Kenya urged competitors to use the official legal remedies to lodge any complaints.

That Odinga decided to go to the courts and that the court gave his complaint due consideration is a positive indicator of Kenya's democracy.

It is not, however, a reason to condemn the practice of international election observation.

Holly Ruthrauff is an independent Brussels-based election expert who sometimes takes part in EU observation missions and who advises EU institutions.