TNA supporters waving a poster of Uhuru Kenyatta outside a CORD Coalition rally, February 15th 2013. ©Will Boase

Kenya too much of the lessons of 2007/2008 to heart. First, the institutions and processes for conducting the election were thoroughly followed to deliver a free and fair election. Second, the processes of voter registration, balloting, tabulation, transmission of results were similarly susceptible to manipulation and both candidates and voters did not have the trust in these processes ability to deliver credible and clean elections. As part of the institutional reform process, a brand new body, Independent Electoral and Boundaries Commission (IEBC), responsible for conducting the election was established.

To guarantee the integrity of the elections, IEBC invested a great deal in building a technology based infrastructure. The first of these are Biometric Voter Registration (BVR) kits, which ensures that there are no ghost voters. The other was the electronic tallying system that was meant to ensure speedy and clean tabulation and transmission of results from polling stations to the IEBC head quarters. According to some sources this brand new infrastructure cost Kenya 40 billion shillings.

Understandably then, the IEBC as well as Kenyans counted heavily on the new technology towards creating the conditions for the delivery of a clean election. To the surprise of many, the technology that was supposed to save the credibility of the election happens to be one of the factors undermining what has so far been a very exemplary electoral process.

The problem with the new system started on the polling day. Many polling stations were unable to operate with the BVR kits, resulting in delays in processing voting process. The problem was serious enough to require the IEBC to give a press briefing and direct polling stations that encountered the problem to manually confirm queuing voters with the voter register.

In a press conference the IEBC gave a day before polling, it informed the Kenyan public that it expects to announce results within 48 hours. This exhibited IEBC’s confidence in the new electronic tallying system to relay the results of the votes from polling stations to its head quarters. Unfortunately, this was not meant to be. This is despite the fact that the issue was highlighted in a piece that featured in The Star as early as on 19 February.  A day after polling, the system started to fail the IEBC. By the end of 5 March the IEBC received through the electronic tallying system only 40 per cent of the votes cast. On that same day, IEBC gave one of the many press conferences in an effort to explain to the Kenyan public the problems it faced in the transmission of results. It told the public that it would not announce the result in 48 hours as promised and that under the law it is required to announce in 7 days.

Understandably, the slow pace of transmission of results created anxiety on the part of candidates as well as among members of the electorate. Many Kenyans expressed their concern about this and indeed it tested the patience of many and raised the suspicion of others. The situation also prompted Raila’s running mate Kalonzo to give a press conference assuring supporters that the votes to be counted would change the lead that Uhuru maintained since results started trickling in at Bomas, Kenya, where the IEBC established its base.

The most serious technical challenge facing the IEBC is the size of the rejected votes. According to the IEBC, out of the 42 % votes counted, more than 330,000 votes were rejected as spoilt vote. Some Kenyan observers were of the view that this was attributable to IEBC’s unnecessarily rigid application of rules. Accordingly, Godfrey Musila suggested that if the intention of the voter was discernible from the ballot paper, the vote should not be rejected as spoilt. One election observer told me that there were at least two factors that led to the rejection of such high number of votes. First, this could have in part been avoided ‘had there been different markings between the cream colored presidential ballot boxes and the caramel colored member of county assembly ballot boxes. Second, there was lack of assistance to enable people to distinguish between the different colors. Apart from these however, there is no doubt that the holding of six votes simultaneously and the resultant confusion is also to blame.

What is troubling about the size of the rejected votes is that it could make a difference between winning and losing. As Musila reminded us, during the 2007 elections President Kibaki was said to have won the election with a mere 200,000 votes difference. Accordingly, sometime on 5 March I observed on twitter ( @SolomonADersso ) that the sheer size of rejected votes stands to be a major source of legal complaint. Indeed, there is now a difference between the two leading presidential candidates camps. While Raila’s CORD argued for the inclusion of the rejected votes, Uhuru’s Jubilee, which has maintained lead in the counted votes, objected to the inclusion of the rejected votes.

Although the slow transmission of votes is being rectified with the arrival of returning IEBC officials with the results of polling stations, the rejected votes are set to go to court. In that instance, the issue would turn on the interpretation of the phrase ‘votes cast’ in Article 138(4) of the 2010 Constitution. This article reads ‘[a] candidate shall be declared elected as President if the candidate receives a) more than half of the votes cast in the election and b) at least twenty-five per cent of the votes cast in each of more than half of the counties.

While much of the focus about the inclusion or exclusion of rejected votes relates to the presidential polls, a decision on this issue is also likely to affect other categories of votes as well. This means that legal complaints may also be lodged in respect to the rejected votes from other categories of votes as well.

The hope is that, given the patience, discipline and determination that voters displayed on polling day and since, these technical glitches would not be allowed to disturb the successful conclusion of the election.

Solomon A. Dersso, PhD is Senior Researcher on the Peace and Security Council Report Programme for Institute for Security Studies