Samuel Kivuitu is not a man many Kenyans look upon favourably. In fact, so loathed is he that his exact whereabouts remains concealed. His crime? As chairman of the now disbanded Electoral Commission of Kenya (ECK), he is widely considered the man who – either deliberately or through gross negligence – is responsible for the rigging of Kenya’s 2007 presidential elections which were mainly contested by incumbent President Mwai Kibaki and main opposition leader Raila Odinga.
This issue holds particular importance given the ongoing trial at the International Criminal Court (ICC) regarding the post-election violence which, according to some estimates, led to the deaths of as many as 1,500 Kenyans and displaced 600,000.
Yet the overwhelming reason for scapegoating Kivuitu lies not in facts but in expediency: giving him a bad name is in the overwhelming interests of the coalition government for it makes it easier for them (ICC defendants apart) to whitewash the violence. It is not for nothing that many Kenyans mock the ‘Government of National Unity’ as being little more than the ‘Government of National Impunity’.
The charges against Kivuitu are certainly serious. He is accused of abrogating responsibility when it mattered most as he publicly declared: "I do not know whether Kibaki won the election". This was amidst much evidence that voting tallies for both main candidates, but especially President Kibaki, had been grossly inflated.
Yet deeper analysis shows that Kivuitu was not the gross incompetent as which he has been portrayed. On the contrary, his handling of the 2002 election – perhaps the least corrupt in Kenya’s chequered relationship with democracy – was universally lauded. Indeed, it should be remembered that it was pressure from the international community that allowed Kivuitu to continue his position of Chairman of the ECK for the 2007 elections.
This pressure was needed given the somewhat farcical way in which system of electoral commissions was set up. Ever since Kenya’s first multi-party elections in 1992, members of the ECK have been appointed on five-year terms. These have repeatedly expired just months before presidential and parliamentary elections (which also follow a five-year cycle). If this has looked like it was designed to prevent commissioners from being impartial and ensuring they are susceptible to influence from the president, that is because that is how it was envisaged by President Daniel arap Moi, a man so unpopular that he could only win 35% of the vote in the 1992 election, despite mass intimidation, vote-rigging and gerrymandering.
The ECK has thus been familiar with disruption, but 2007 saw disruption on a scale unforeseen. In both 1997 and 2002, the Inter Party Parliamentary Group (IPPG) had secured an agreement with Moi that a consultative process should be used in the appointment of electoral commissioners. This provided a check against Moi unilaterally appointing biased members. This consultative process was critical in creating the environment that allowed the 2002 election to pass peacefully – and to allow Kibaki to become president.
But when Kibaki’s turn came around, he had no wish to create the conditions necessary for a fair election to take place while he was incumbent. Indeed, in failing to agree to keep the IPPG agreements for a consultative process, Kibaki destabilised the commission. As with Moi in 1992, his actions were those of a man who feared he would not be able to win in the event of genuinely fair elections.
Within the year before the 2007 elections, 15 of the 22 electoral commissioners had been replaced. And Kibaki waited until the last possible moment before, under intense donor pressure, he renewed Kivuitu’s term which had expired less than a month before polling day. Despite Kivuitu at the helm, however, the sheer scale of personnel replacement had already done much damage. Denis Galava, deputy managing editor of The Daily Nation newspaper, told Think Africa Press of a "feeling that the Electoral Commission was staffed or filled with people associated with President Kibaki and his Mount Kenya region people". Kibaki’s appointment of ECK deputy chair Kihara Muttu, viewed as a close ally of the incumbent, was particularly criticised.
Kivuitu was thus faced with profoundly difficult circumstances, but he did not shirk his responsibilities. In a leaked cable, the US Ambassador in Kenya described Kivuitu as “determined to run a clean election” just before the vote, following on from earlier private comments that the electoral commission chairman was “the real deal”. On the day of the elections themselves, the US Ambassador praised the “Herculean efforts” of the ECK.
It was only afterwards that the scale of the problems emerged. But given the new and uncooperative commissioners Kivuitu was dealing with alongside a lack of funding, the degree of blame that should be apportioned to him is limited. Whether or not the famous Daily Nation cartoon showing Kivuitu with a Kalashnikov pointed at his head was an accurate portrayal of events behind the scenes, he certainly faced inadequate assistance in the most critical of jobs.
Revealingly, when asked about whether the Kenyan elections would have been more credible had Ghana’s widely-praised election chief Kwadwo Afari-Gyan, rather than Kivuitu, been chairman, journalist Galava said, "I don’t think it would have made much difference because the secretariat and most of the commission had already been involved in malpractice".
Blaming Kivuitu ignores the wider lessons of the 2007 elections. If Kenya is to avoid a repeat of the violence in the elections in March next year, there must be an acknowledgement that blame should extend much, much further than Kivuitu. That Kivuitu proved unable to do his job owed much less to his own failings than the insurmountable hurdles he faced.
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