Much hyped referendum only good for five warlords

Sometimes our capacity to forget tough issues is baffling. Or maybe it is the classic mental trick of ignoring something hoping it will resolve itself. But when that happens collectively, something is seriously amiss.

Today, some powerful people are taking us inexorably into a referendum. But we still have no clue what it will be about, except for some vague mentions of inclusivity which seems to be about increasing positions in the Executive to cater for people purporting to represent the tribal interests of the Big Five communities. We know this is not about community interests. That is just the cover for the personal interests of politicians who want to continue “eating” or get their chance to eat. Sadly, this proposition could well institutionalise a system of five warlords lording over us, with the potential to make the warlord position hereditary.

And to smoothen the road to the referendum, we hear that governors are being offered the scrapping of term limits to support a referendum. Alternatively, there are suggestions to create a new layer in devolution, “super governors”, to control what used to be provinces.

I doubt the idea of super governors will work since it engenders animosity and infighting between governors as they each seek to be the one.

The bottom line is that the driving force for a referendum is personal interests, no matter how it is presented. Yes, we will have some useful tidbits thrown in, such as increasing the allocation to counties, or tinkering with anti-corruption institutions. But these would be minor and incapable of restricting the power and ability of the five warlords to eat as much as possible.  

But whatever the substantive issues for any referendum, the forgotten elephant in the room remains the Independent Elections and Boundaries Commission. If we were serious about a genuine referendum, one that would be about the public interest, then the first order of business would be overhauling the IEBC. But the fact that all the political protagonists are silent—including those publicly uncomfortable with the referendum—must mean that they believe they have control of the IEBC and the ability to maneuver it to reflect their wishes as they have done previously.

Yet, we have a rotten IEBC. The fact that there are so many questions about procurement at IEBC is enough evidence. If an institution can allow such theft of public funds, then it will allow the theft of votes to whoever can protect those in control at the IEBC. Chief Justice David Maraga alluded to fraudulent elections as a critical issue facing democracy and constitutionalism in a recent speech at Oxford University, reiterating his predecessor’s views provided in many forums especially since he stepped down as Chief Justice.

Not only is the IEBC unlawfully constituted with less than optimal commissioners, its errors—deliberate or otherwise—in the last elections are legendary. And it still has not obeyed the Supreme Court’s order from August 2017 to open its servers. That refusal to obey court orders is criminal and all the commissioners and staff at the time should be serving jail sentences for contempt of court.

Incidentally, the lack of action by the Supreme Court on this matter of contempt belies the Chief Justice’s concerns about electoral justice and equity, something he should focus on as he sees out his last years in office as a legacy.

So, we are in a situation where we have an un-credible, incompetent and compromised IEBC that will be tasked with handling a referendum whose need has yet to be explained beyond personal interests. And remember, we will be going into the question of constituency boundaries next year, after we have conducted the national census, something which is crucial if the referendum seeks to move us into a parliamentary system.

With the existing boundaries, a parliamentary system would reward the decades of gerrymandering that was done during the Kanu regime, something that counters the personal interests of those seeking a referendum. And this could perhaps partly explain the silence and missing inaction of the hyped Building Bridges Initiative. For how does it suggest reforms without guaranteeing that its sponsors will benefit?

Don’t get me wrong. While our constitution is one of the best in the world, it has room for improvements to make it more progressive to become the support base for pro-people governance and welfare. But it seems to me that after nine years, the more urgent need to is faithfully implement it first then gauge its shortcomings genuinely. 

All too often the Executive ignores or flatly disobeys the constitution to suit its particular ends, hence the avalanche of cases filed in the courts.

And therein lies the problem. How can those in power who have flouted, ignored and abused the constitution be trusted to make reforms that will benefit the public rather than the personal interest, and with a compromised IEBC in charge?

- The writer is former KNCHR chair. mkiai2000@yahoo.com