A ticking time bomb, a dishonest political class and stubborn electoral commissioners. This is the wretched narrative of the debate on reconstitution of the Independent, Electoral and Boundaries Commission (IEBC).
As politicians dig in on stated positions, belligerent electoral commissioners stand their ground, discredited mediators struggle to reclaim their pride of place and ordinary Kenyans watch from the corners, time is flying fast to the next General Election.
Experts, insiders and pundits paint a gory picture of a country consciously walking into a dark pit as a cowed international community and the region feebly watch from the sidelines.
“The fact of the matter is that time is not on our side. Even assuming there was good faith among our political class and the political will to solve this, we may not be able to substantively sort out the mess we have thrown ourselves into in good time ahead of the election,” Prof Yash Pal Ghai, a renowned constitutional scholar told The Standard on Sunday yesterday.
According to Ghai, some of the reform issues contemplated will require protracted negotiations, exhaustive national debate and possibly a referendum to execute, and yet by their nature they cannot be rushed.
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“Everything seems out of control, even at the Judiciary. The Attorney General is not playing any positive or any meaningful role in all this. Sometimes you want to ask whether it’s all contrived. I do not know for sure. All I know is that we are in a serious mess and it will require a lot to get out,” Ghai said.
Ghai led the Constitutional Review Commission of Kenya (CKRC) in the country’s penultimate push for a new Constitution. Operating under hostile political environment laced with mosaic of intrigues, the commission produced a draft constitution which never left Bomas, the venue of the National Delegates Conference.
“Politicians must stop being dishonest. The whole point of having a negotiated constitution was to enable us resolve all our issues without having to resort to the law of the jungle and flexing our political muscles. It should never be about who can marshal enough numbers,” former Commission for the Implementation of the Constitution (CIC) Chair Charles Nyachae said yesterday.
In Nyachae’s considered opinion, the resolution of the current dispute over the electoral commission cannot and must not be limited to a CORD and Jubilee affair. He says Parliament remains the correct forum for resolving the matter.
“They have done this in the past. There are many examples where Parliament has approached such issues from a bipartisan perspective. It is possible to involve political parties and political leaders in the parliamentary process if we are serious about getting out of this,” he said.
He also pointed another problem which has been raised by every reasonable pundit on the matter: The vagueness of the charges against IEBC and whether it covers individual commissioners or the whole commission.
“The concerns against IEBC are not coming out clearly from the CORD leadership. If individual commissioners have defaulted in their mandate, there are clear mechanisms of dealing with them. If it’s a broad question of credibility, it can be handled through the legitimate channels,” Nyachae said.
Bipartisan approach
For Senior Counsel Nzamba Kitonga, the matter is fairly straight-forward if only everybody applies themselves to it soberly: Encourage electoral commissioners to quit, including through pay-outs. It’s the same view shared by Prof Ghai and Nzamba’s former colleague at Committee of Experts Dr Ekuru Aukot.
“From my own considered and informed view, nothing – including the other essential electoral reforms – can take place as long as the commissioners are in office. They are the source of the current stagnation and the only way out is to quietly negotiate with them,” said Kitonga.
“It has happened before with the Ethics and Anti-Corruption Commission (EACC) and Inspector General of Police. It does not mean that they have committed any offence. The crisis building up is not in public interest.”
According to Kitonga, the other longer route is through a concise and clear petition through Parliament, a process that could be threatened by lack of bipartisan approach and through political interests of antagonistic players.
“The President is playing smart but dumb at the same time. What law did he follow during the purge at EACC and even the IG? It’s a classic case of double-speak and hypocrisy. The President can require them to resign. He swore to defend the Constitution and yet the continued stay in the commission, especially of the chairman, is bringing into disrepute the office he holds contrary to the Constitution,” Aukot said.
According to Aukot, both Jubilee and CORD alliances are leading the country down the path of destruction. He said neither CORD has offered a concise charge sheet against IEBC nor has IEBC offered any credible defence of the commission which grossly mishandled the last election.
“In more than one way, CORD’s own conduct has justified the conduct of IEBC. They accepted the results of 2013 results despite massive irregularities and failures of the commission. They met and even congratulated the president-elect inside State House. They have now waited closer to the 2017 elections to raise all these issues. Did they just wake up?” Aukot said.
For Elections Observation Group (Elog), the environment has essentially been spiked for any meaningful electoral reforms to take place ahead of the next election. The group says it may be time the country came to the realisation that only essential and minimum electoral reforms can take the country to the next election.
“In one way, there is a good reason for players to agitate for credibility of an electoral institution but in another way, there is the danger that you could be killing the spirit of building the institution. The fact of the matter is that no angels will come to replace the current commission. The danger is that we could be turning electoral management into a game of musical chairs,” Mule Musau, the national coordinator and spokesman of Elog told The Standard on Sunday.
Just like Eukot, Musau says the danger is that the country has started to discuss gravely sensitive issues a little bit late and chances are that the debate will eat into preparations. As a result, many things – including reforms which were in the pipeline – could be lost.
“As Elog, we are in full picture of what needs to be done if we must have free and fair elections. We will be pushing for an informed and structured dialogue entailing very clear issues. We are also alive to the danger this portends; a hotly contested presidential election and possibly divisive election at the grassroots,” he said.
All “voices of reason” interviewed for this piece agree that the 2013 election was sorely mismanaged under the current commission leadership. They also agree that no meaningful audit has ever been done to fully appreciate why certain things happened. They say unless a thorough appraisal of leadership and management of the current commission is done, it may be too risky to take another chance on IEBC.
“In all this, our focus should be to enhance the chances of a better election next time. The fact of the matter is that the 2013 elections were badly managed. Really, really badly organised. We cannot afford to allow voters to go through the same experience,” Ghai said.
“Our focus right now should be to strengthen the actual election management processes to avoid a repeat of the last poll, especially the technology aspect. The problem is that we are running out of time,” Nyachae said.
Necessary reforms
“In my opinion, the other reforms including management issues are not in dispute. If anything the Samuel Chepkonga-led committee in Parliament has been negotiating the necessary reforms to address shortfalls of 2013. The issue at hand is the credibility of the commission,” Nzamba said.
“The question CORD should be asking in framing their charge against IEBC is whether the failures of 2013 were accounted for and have been corrected. I would be asking why IEBC refused to register diaspora voters and why Chickengate cannot be settled from our end yet UK dispensed with it,” Aukot said.
