IEBC is a sacred agency, let us jealously protect and nurture it

The history of elections in Kenya goes back to pre-independence when the first polls to the legislative council were held in 1920. At that time, the elections were for Europeans only. Africans did not feature anywhere.

It was not until 1957 elections that eight Kenyans were elected for the first time to represent the African population. In 1963, under universal suffrage, Kenya’s first truly multi-party election took place and Jomo Kenyatta became the first Prime Minister of independent Kenya.

Fast forward to the December 29, 2007 General Election when hell broke loose and Kenya witnessed the first widespread election violence. In 2011, the Independent Electoral and Boundaries Commission (IEBC) was created post-2010 Constitution. It enjoys greater prominence among all constitutional commissions and independent offices for good reasons.

This is because elections are about power and those to whom the nation elects exercise ultimate authority to determine how and where resources of the nation are generated and, more importantly, allocated besides exercise of appointive authority to key institutions of governance.

Hence why leadership is the most hotly contested in the land.

Where does IEBC fit in the scheme of things? Besides the voters, it is the husbandry to the acquisition of executive power through its conduct of elections.

However, over the years, we have witnessed changes attributed to politicians with intention to shape and influence its role. This is in the form of demanding removal of its commissioners and lately the staff.

This irrationale pre-occupation with removal or restructuring undermines capacity building, institutional memory, transformation and sustainability of the IEBC. The hurry to change those in charge without due process is not only destructive but is indeed unconstitutional to the detriment of  democratic principles in our nation.

The 2017 Supreme Court findings of irregularities and illegalities during the petition against the election of the President were leveled against the commission. Nevertheless, the only conclusion the Supreme Court drew is an acknowledgement of systemic failures associated with the IEBC as an institution. No individual commissioner or staff of the IEBC was assigned culpability and therefore it is impossible to rightfully apportion blame to anyone until full investigations are carried out by the EACC and the DPP.

All the same, NASA has determined who to blame and says it will not participate in the elections without their removal, in itself a contempt of the Supreme Court which ordered IEBC to organise fresh presidential polls and never gave sacking orders as a pre-condition.

Removal of commissioners prior to the expiry of term, as happened in 2016, when the Issack Hassan commission was maligned to the point of resignation literally less than a year to 2017 General Election, was contrary to article 251 of the Constitution.

I was against that move then and believe the manner with which those commissioners were hounded out of office, through mob justice orchestrated by political players, was unconstitutional. The same infamous approach is being revisited on the IEBC today.

Do we ever ask what our collective responsibilities are for the predictable failures of electoral bodies since the time of Kivuitu’s ECK and to take corrective measures once and for all?

This disrespect and lack of fidelity to the law can only be characterised as a sign of political anarchy perpetrated with impunity of the highest order by accepting a new norm modus operandi, totally inconsistent with article 236 of the constitution that provides for protection of public officers from being dismissed, removed from office, demoted from rank or subjected to disciplinary action without due process, an act by and of itself against the tenet, spirit and letter of the constitution.

To build a democratic country, we must henceforth owe it to ourselves to painfully respect, nurture and protect our young and struggling institutions and to avoid at all costs, playing ping pong games with those we disagree with.

This will otherwise be tantamount to subordinating the nation’s interests to individual whims with the resultant consequence of putting everybody’s life in peril. It is therefore imperative that we desist and resist any temptations from whichever quarter by conducting ourselves in a manner, reflective of elevating the self beyond the national interest.

To act anyhow will be our collective Achilles heel, if in every election one doesn’t win, the solution is to agitate for dismemberment of the IEBC.

If this becomes an institutionalised culture, then anchorage of our nationhood will remain a mirage and certainly, we shall forever be undercutting our potential for economic and social prosperity necessary to combat widespread poverty which is the real challenge facing our country coupled with the scarcity of mental capacities.

The writer is an Advocate of the High Court.