The 2022 general elections were the third general election and the fourth presidential election since the promulgation of the Constitution 2010. They were also the 7th periodic general elections since the re-introduction of multi-party democracy in Kenya in 1991. They were transitional elections for Kenya as they marked the end of the incumbent President Uhuru Kenyatta’s two terms in office. Similarly, there were 22 transitions at the county governors’ level due to the expiry of respective 2 term limits. Since the re-introduction of multi-party politics in 1991, Kenyan elections have remained very high-stakes affairs that are characterized by heightened socio-economic, political and ethnic tensions.

While the 2022 general elections were no exception, they were nuanced by an additional layer of new political shifts and narratives that emphasized socio-class and identity-based grievances and tensions. Other numerous issues and factors, such as rising cost of living, high unemployment and poverty levels, corruption, bulging public debt, general insecurity, and political patronage, among others, also defined and shaped the context and environment in the lead-up to the 2022 elections.

These factors were compounded by the challenges of the COVID-19 pandemic, splintered ruling party, class and intra-elite tensions, existential politics of survival and the exponential cost of elections, to make the 2022 general elections unprecedented, unpredictable, complicated and challenging. The two top contenders for the presidential position, Raila Odinga and William Ruto, in some way, had a claim to incumbency and attracted a near-equal political support base across the country. Opinion polls over the period also showed a close margin between the two top presidential contenders and a possibility of the presidential election outcome tilting in favour of either of them at the finish line.

They also portrayed a potential of neither of the two top presidential candidates crossing over the 50%+1 threshold, thus the likelihood of a run-off. Out of a national population of 47.6 million, 22,120,458 Kenyans (49.12% female and 50.88% male, while 39.84% were youth between 18-35 years) were registered to vote in the 2022 general elections at the 46, 233 gazetted polling stations across the 1,450 electoral wards in the country. Even though this was an increase from the 19.6 million registered voters in 2017, general apathy and lack of interest, among others, as well as the consequent low voter registration, characterized the voter registration drives for the 2022 general elections.

The registered voters were required to simultaneously cast six ballots for the election of a President, Senator, Member of the National Assembly, Woman Representative, County Governor and Member of County Assembly. The IEBC cleared and registered a total of 16,100 candidates to contest for the 1,882 elective seats across the country. Out of these, 11,574 (72%) contested on political parties’ tickets, while 4,526 (28%) contested as independent candidates. While the majority of the candidates were vying through political party tickets, these elections also had a record-high number of independent candidates as compared to previous elections.

Out of the 7,128 aspirants who showed interest in contesting as independent candidates, 4,526 were cleared and registered to contest as independent candidates. The 2022 general elections had the lowest number of presidential candidates cleared to contest since the restoration of the multi-party system in 1991. Out of the 4 cleared presidential candidates, two of them, Raila Odinga of the Azimio la Umoja, One Kenya Coalition and William Ruto of the UDA/Kenya Kwanza Alliance, were clearly the front runners. The other two presidential candidates, George Luchiri Wajackoyah of the Roots Party and David Waihiga Mwaure of the Agano Party, also attracted the imagination of Kenyans with their campaign agenda.

In its tradition and buoyed by its long experience, established professionalism, neutrality, impartiality and developed niche in election observation in Kenya and the region, ELOG observed the August 2022 general elections through the use of eight thematic areas by deploying 5,108 citizen observers. ELOG employed long-term and short-term strategies and methodologies that covered the pre-election environment, Election day processes and immediate post-election period.

The broad-based and holistic approach to election observation that ELOG utilized enabled it to speak authoritatively and objectively on the broader electoral processes based on a broad outlook. For Elections Day (E-Day) on 9th and 29th August 2022, ELOG utilized a short-term elections observation methodology that combined Parallel Vote Tabulation and General Observation to enable ELOG to give a comprehensive and credible national account and outlook of the entire Elections Day processes. ELOG’s observation findings and assessment of the 2022 elections indicate significant improvements towards the management of election day processes and related activities that culminated in the declaration of the electoral outcomes by the IEBC. In particular, ELOG noted significant improvements in the set-up, opening and closing of polling stations, enhanced efficiency in the management of KIEMS kits (failure rate dropped from 7.6% in 2017 to 6.1%) and the general improved transparency of the transmission of results.

The improvements in the results transmission system were largely borne out of the challenges experienced in 2017, which eventually led to the nullification of the presidential election results. It was also partly attributable to the simulation exercises that ELOG had observed before the elections, where the performance by the IEBC raised many concerns. It was remarkable that the IEBC was able to transmit more than 95% of Forms 34A from the polling stations by the end of the 2nd day after the close of polls.

ELOG observed some remarkable progress and elements in the 2022 electoral processes that included the use and application of technology, especially in the transmission of results and the open and accessible results portal that enabled stakeholders and the public to access and interact with the election results. For the first time and in a departure from previous elections, results data from the polling stations were posted and publicly made accessible through a public portal, which the IEBC provided.

The Kenyan media, in particular, accessed the results for display and to run their own tallies and provided 24-hour analysis of the polls, setting a new norm worth emulating. The media streaming of the results enabled political parties, civil society organizations and citizens to concurrently interact with and track the results. ELOG also commends the judiciary for its critical role as a neutral and trusted arbiter in the political and electoral arena that provided significant guiding jurisprudence towards the 2022 electoral processes.

However, many areas and elements of the electoral processes remained retrogressive. First, for the first time in 3 electoral cycles, the voter turnout dropped to below 70%, further corroborating the fears of growing voter apathy initially demonstrated during the voter registration process. Our observation also noted increased reliance on social media platforms during the electioneering period and increased fake news, mis/disinformation, and propaganda during the elections, especially on the results management process and the suspension of some elections due to inconsistencies in some of the strategic materials.

There were some incidents that were reported on election-related violence, voter bribery, intimidation, and the non-admission of some observers at election venues. However, ELOG did not record any serious, systematic, or pattern of planned aberrations that could have undermined the integrity and credibility of the E-Day processes and impugned the overall electoral outcomes. Three incidents around the transmission, tabulation, and verification of results, however, stood out for mention. First, despite the reported success of the transmission of results, the action by the media to stop the broadcast, as well as the lack of the final results updates from the IEBC, plunged the country into darkness and created unnecessary tensions and anxiety that the earlier transparency had mitigated.

Secondly, the altercations and chaos that were witnessed at the National Tallying Centre at Bomas of Kenya eventually crystallized into two IEBC factions, one led by the Chairman who declared the final results, and the other led by the Vice Chairperson who disputed the same, was unprecedented in Kenya’s electoral history. Had it not been for the surprising public restraint and calmness and interventions by individuals, including religious leaders and security officials, these actions could have plunged the country into chaos and violence.

Finally, and in the petition process that followed the disputed presidential outcomes, all parties rode on the confidence that had been established by the bold and assertive decisions of the Supreme Court Kenya (SCOK) in previous disputes in 2013 and 2017 to submit their case to the Supreme Court for adjudication. The SCOK, while appreciating the limited timelines (14 days) within which the petitions needed to be determined, embraced a generous, inclusive approach that allowed some late submissions and the inclusion of more parties to the hearing process.

The IEBC declared William Ruto as the president-elect with 50.49% of the votes over his close rival, Raila Odinga, who had 48.85% of the valid votes cast. ELOG established that the official presidential election results that were announced and declared by the IEBC were within its projected PVT ranges. For that reason, ELOG’s PVT projected results corroborated the IEBC official results for each of the 4 presidential candidates who contested the 2022 presidential election.

The IEBC announced the total voter turnout to be 64.8% of the registered voters. The ELOG PVT projection for final voter turnout was 65.1% with a margin of error of +/- 0.7%. The PVT projection for the final rejected ballots was 0.8% with a margin of error of +/- 0.1%. At the same time, the official results announced and declared by the IEBC indicated the rejected votes were 113,614, constituting 0.79%. Again, the PVT projection corroborated the IEBC official figure of rejected votes.

Having observed electoral processes since 2010, ELOG notes with concern that the following have remained recurrent features of every election cycle:

• Inadequate voter education

• Campaign period regulation

• Late attendance to electoral reforms

• Questionable integrity of the voter register

• Use of technology in electoral processes

• Problems with the corporate governance of the IEBC

• Lack of regulation of campaign and political financing

• Non-achievement of the two-thirds gender rule and inclusion of women and PWDs

Therefore, while being mindful of and reiterating previous recommendations and while emphasizing the elements that keep recurring, ELOG notes that in the 2022 elections, there were still institutional, legal, policy, administrative and technical issues and concerns that duty bearers and stakeholders as well citizens should address to strengthen and improve the political and electoral processes and ultimately promote constitutionalism, democracy, governance, human rights, and rule of law moving forward. The outstanding issues and concerns are largely the products of the elements that keep recurring. Consequently, ELOG makes the following key targeted recommendations, which will be useful towards that end.

Independent Electoral and Boundaries Commission

• There is a need for Kenyans to dialogue, review, rationalize and re-evaluate the electoral system and infrastructure, including the EMB model in Kenya, with a view to identifying a system and infrastructure that best suits the political dynamics and nuances in Kenya. ELOG proposes that considerations should be put in place for Kenyans to dialogue and build consensus over the most suitable electoral system and infrastructure as well as the Commission model based on the need for inclusivity, integrity and independence.

• ELOG reiterates the Supreme Court recommendation that there is an urgent need to clarify the policy, strategy and oversight roles and functions of the Chairman and Commissioners through legislative reforms.

• There is a need for clarity and delineation of the policy and administrative domains of the Commission through a clear separation of the roles and responsibilities of the Commission from those of the Commission Secretary and Commission staff.

• The IEBC should convene an independent post-election review and evaluation of the 2022 elections and other electoral processes, including the role and performance of key duty bearers and right holders in the electoral processes.

Political Parties and Political Leaders

• There is a need for political parties to improve and strengthen internal party governance and democracy to promote inclusivity and increase the participation of all members, especially the special interest groups.

• Political parties should review internal constitutions and rules, especially the elections and nomination rules, to promote good governance and transparent and accountable internal party processes, including elections of party officials and nomination of candidates for elective positions. This includes keeping and using bona fide members’ registers for critical decision-making activities such as party nominations.

• Need for parties to ensure compliance with the two-thirds gender rule in all party elective positions, in the nomination of candidates for elective positions and in all administrative and leadership organs of the parties.

• Parties should improve and strengthen the internal dispute resolution mechanisms to promote timely and fair adjudication of internal party disputes, especially those arising from party nominations. This should involve adequate training of party election boards and improving the dispute resolution rules.

The Judiciary

• The judiciary should invest in improved training for judicial officers on election dispute resolution to enhance skills such as technology-driven processes, knowledge base and efficiency of those tasked with election dispute resolution.

• The Judiciary should improve on the prioritization and management of pre-election dispute cases to ensure that they are managed and determined efficiently and promptly, bearing in mind the strict constitutional and legal timelines for elections.

• Judicial officers should remain mindful of the gains that Kenyans have made and realized through the promulgation of the Constitution 2010 and, therefore, should aim to promote the realization of the purposive and progressive spirit and gains in the Constitution rather than undermining them through retrogressive interventions and decisions.

Parliament

• Need to work with the IEBC and other stakeholders to ensure that all electoral legal reforms and amendments that were delayed and not enacted in the 2022 election cycle are introduced, debated, and enacted in a timely manner and in line with international best practice which recommends a cut-off point of 2 years to the elections, bearing in mind the requirement for public participation under the Constitution 2010.

• Need to move with speed to ensure that enabling laws and regulations are enacted to operationalize the Campaign Financing Act and the two-thirds gender rule.

• Need to provide effective oversight and timely approvals for the IEBC annual budgets based on the electoral cycle approach to ensure robust engagement by the Commission in implementing its activities in the discharge of its mandate.

Office of the Registrar of Political Parties (ORPP)

• Engage with stakeholders and political parties to review and implement the regime of party financing to ensure more transparent, equitable and accountable public funding for political parties throughout the election cycle. Make efforts towards promoting accountability in campaign financing by encouraging political parties to support the implementation of the Campaign Financing Act.

• Observe strict supervision of political parties to ensure open, democratic, professional, and accountable management of political parties and party affairs. Pay more attention towards the internal governance processes of parties to ensure democratic and accountable governance structures and processes, including democratic conduct of party elections and nomination of candidates.

• Enhance partnership and collaboration with the IEBC and the PPDT to ensure better management of party affairs, such as nominations and dispute resolution during the election period.

National Police Service

• Ensure that adequate and accountable security is provided to all stakeholders during the elections. This includes security towards election materials and election officials, security during elections, announcement and declaration of election results, and security to citizens, voters, and election observers.

• In particular, the police should comprehensively investigate and prosecute individuals who contravened electoral laws, including the Electoral Code of Conduct. Similarly, the police should move with speed to investigate the circumstances under which election officials fell victim to political profiling, were maligned, were attacked, and injured, and circumstances under which some of them were abducted and some killed.

• Improve the collaboration and partnership with other elections duty bearers such as the IEBC to ensure better provision and management of security during the elections.

Data Protection Commissioner

• Ensure that enabling regulations are enacted to fully operationalize the Data Protection Act to enable the implementation of data protection measures to combat illegal personal data mining and sharing as well as unethical and illegal intrusion on citizens’ privacy with unsolicited SMS text messaging by politicians and parties during the electioneering period.

  To Citizens/Voters

• Citizens should recognize that they are the biggest stakeholder group and beneficiary of elections, and for this reason, be aware that their conduct and behaviour are very critical in determining the quality of elections.

• Citizens should desist and refrain from and resist voter bribery and involvement in corrupt and illegal political and electoral practices such as political incitement and violence. They should be part of setting the agenda for elections by making meaningful demands and holding political parties and political leaders accountable.

• Citizens should always endeavour to maintain positive attitudes, behaviour and active agency towards democratic and governance processes. Therefore, citizens’ interest in democratic and governance processes such as elections should be reinvigorated and employed for meaningful and value-based governance changes in society.

  International partners & observers

• Adopt the electoral cycle approach in election monitoring and observation as a basis for long-term and sustainable positive interventions. This will also ensure that the entire election cycle and electoral processes are observed and suitable interventions made.

• Invest in synergy building, collaboration, coordination and wider consultations and engagement amongst observer missions and groups to build consistency, avoid duplication of efforts and maximize coverage across the whole country and complementarity of efforts.

• Guided by lessons from Kenya, to continue strengthening regional south-to-south and local partnerships, knowledge and technical experience and skills sharing and coordination amongst regional observation groups, including support solidarity during elections.

• Render comprehensive and timely observation statements and reports and invest in follow-up with key duty bearers such as the IEBC to track and address observation findings and implement observation recommendations.

The Private Sector

• The private sector, both local and international, should continue to play its support role in elections through ethical and professional conduct in their engagements with key election stakeholders. They should render their services in a manner that respects the sovereignty of the Kenyan voters and in accordance with the laws of the country.

• The private sector should also consider building partnerships and collaboration with civil society organizations during elections, especially to support election observation and, in particular, supporting civil society with resources and funds that can support civil society work in promoting democracy and good governance, including election observation.