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Rewarding the losers - A case study of the Kenya and Zimbabwe electoral commissions
ACT-Southern Africa
January 2009

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Executive summary

The conduct of the Electoral Commission of Kenya (ECK) and the Zimbabwe Electoral Commission (ZEC) during the 2007 and 2008 elections respectively casts doubt into their independence, impartiality, professionalism, integrity and transparency in the delivery of free and fair elections to the electorate. Kenyan general elections were held on 27 December 2007 whilst the Zimbabwean harmonized elections were held on 29 March 2008, followed by the 'one man' Presidential run-off election that took place on 27 June 2008. The elections under review were given a blaze of publicity, all for wrong reasons. Public attention was drawn by the controversy surrounding the election results and the conflicts that emanated therefrom. The electorate was painfully let down when the losers were rewarded. Democracy lost its meaning because of individuals masquerading as neutral and fair yet their motive was to serve the interests of appointing authorities. The two cases under review should be perceived as important lessons for emerging and established democracies in the world. The case scenarios of Kenya and Zimbabwe are however contradicted by what recently came out of the Ghanaian elections in which the opposition won after a re-run and the electorate accepted the results.

The conduct of the ECK and ZEC triggered conflicts that resulted in loss of life, internal displacements and extreme insecurity in the two countries. In Kenya alone, the violence left more than 1,200 people dead and 350,000 uprooted. In Zimbabwe, at least 160 people were killed and about 30,000 were internally displaced. Other effects of the bungling by the ZEC is that the state was left paralyzed, effectively with no government in place from March 2008. In the case of Kenya deaths occurred as a result of the stolen election whilst those in Zimbabwe occurred in the context of the deliberate and calculated delay in announcing the results and contrived run-off presidential election pursuant to the requirements of the country's electoral laws which required such a runoff in the case of any of the presidential candidates failing to garner the requisite 50% plus votes.

In light of the above, the report recommends that appropriate action should be taken against all those responsible. This is in the spirit of nurturing national reconciliation as happened in post Apartheid South Africa and this will be a great source of healing for the disappointed electorate, relatives and friends of the victims, and communities which were ravaged. It will be a great disappointment and betrayal if no action is taken against the ECK and ZEC and individuals in charge of these institutions.

More specifically, the investigation made the following fundamental findings:-

1. The ECK and ZEC failed or deliberately neglected to execute their mandates in a fair, independent, professional, transparent and impartial manner:- There are credible reports confirming that the ECK and ZEC violated their founding principles in favour of Mwai Kibaki and Robert Mugabe respectively.
2. Violence that occurred in Kenya and Zimbabwe before, during and after the elections were directly and/or indirectly triggered by the conduct of the ECK and ZEC:- The unprofessional conduct, lack of independence, accountability and transparency and impartiality of the two bodies is linked to the conflicts that took place. The ECK and ZEC should therefore be held partly responsible for the violence and the resulting deaths and suffering of the people that took place after the elections had been conducted.
3. A corrupt relationship existed between ZEC, ZANU PF and the Executive arm of the government of Zimbabwe:- In the case of Zimbabwe, Robert Gabriel Mugabe, who allegedly stole the presidency with the help of the ZEC, promoted the Chairperson of ZEC, George Chiweshe, from the rank of Brigadier General (rtd) to that of Major General accentuating the suspicions that ZEC was more of a state agent rather than an independent electoral body. Also intriguing is whether a retired soldier can be promoted whilst on retirement.
4. Flawed election processes in Kenya and Zimbabwe produced illegitimate leaders:- Robert Gabriel Mugabe (President of ZANU PF) and Mwai Kibaki (President of PNU) were generally viewed as illegitimate leaders even after being sworn in. For instance a number of influential individuals (e.g. Prime Minster Raila Odinga), institutions and governments (Botswana, Zambia, Nigeria, Liberia, Uganda, South Africa and Tanzania) refused to accept Robert Gabriel Mugabe as a legitimate leader. It is a known reality that democratic elections are the basis of the authority of any representative government. The fact that both Presidents from Kenya and Zimbabwe agreed to enter into governments of national unity (GNU) exposes them as suffering from guilt conscience.
5. Political parties, candidates and other institutions of state power interfered with the work of the ECK and ZEC:- There were credible confirmed reports of interference in Kenya whilst in the case of Zimbabwe there were credible suspicions.
6. Poor management of elections led to voter apathy:- A trend emerged in the Presidential run-off in Zimbabwe that few people voted as compared to those who participated in the first general election. The numbers of all those who
   participated in the Presidential run-off could have been much lower if the electorate was not allegedly coerced to vote. Also important to note is that the opposition MDC withdrew from the election and the reasons cited include the
   lack of independence of ZEC and the violence that preceded such run-off.

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