Following Monday’s presidential and parliamentary election, counting in Kenya proceeded all through Monday night and during the day Tuesday. It’s now the early hours of Wednesday morning there, and still less than half the votes have been counted.

People are starting to get worried, particularly in the heavily-populated western counties, where counting seems unexpectedly slow.

I run elections for a living, so I’m not going to claim it’s an easy task. Even in developed countries there are a large number of things that can go wrong, and in Africa it’s enormously more difficult. The Independent Electoral and Boundaries Commission (IEBC) is a new organisation, and its systems are largely untried. Clearly some of them have not worked well.

On the latest figures, JomoUhuru Kenyatta of the Jubilee ticket is maintaining a lead over his rival, Raila Odinga (of the Cord ticket), of almost 600,000 votes – roughly 53% to 42%. That lead narrowed steadily but very slowly over the course of yesterday’s counting (this time yesterday it was 55.5% to 40%).

That confirms the suggestion that the earlier counting came from generally pro-Kenyatta areas, but whether that effect is strong enough for Odinga to have a realistic chance of overhauling Kenyatta in the remaining half of the count is still anyone’s guess.

In the meantime, the IEBC has bought itself a dispute over the nature of the threshold to be met to avoid a runoff election.

Kenya’s constitution prescribes (s. 138(4)) that a candidate will be elected on the first round if they receive “more than half of all the votes cast in the election” (plus a certain distribution across provinces, which isn’t at issue). But following a request from the Cord ticket, the IEBC ruled yesterday that it would include informal votes in the total of “all votes cast”, making it that much harder for any candidate to win without a runoff.

Psephologically, this is a nonsense. Informal votes aren’t votes: to cast a vote is to make a choice between candidates, and a ballot that isn’t formal just is a ballot that hasn’t expressed any choice. It’s no different conceptually to a voter who stays at home. As the Jubilee ticket quite rightly protested, “There is no precedent in Kenya or internationally for invalid votes to be counted because, by their very nature, they are invalid.”

It’s impossible to say whether this is a partisan move by someone in the IEBC to deny Kenyatta a first-round victory, or whether it’s just a product of confusion and inexperience. Jubilee claimed that “some foreign missions” had been lobbying for such a ruling. If so, that’s the sort of thing that gives foreign observers a bad name.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey