REBUILDING THE IEBC: KENYA’S QUEST FOR A STABLE &SUITABLE ELECTORAL MANAGEMENT BODY (EMB)

REBUILDING THE IEBC: KENYA’S QUEST FOR A STABLE &SUITABLE ELECTORAL MANAGEMENT BODY (EMB)

Electoral justice is one of the predominant themes of 2017 general elections in Kenya. While it carries with a number of components, a strong, stable and suitable electoral management body (EMB) is crucial. The quest for an independent and impartial election administrator has however eluded Kenya for a long time. The last couple of months have helped fortify this position as the Chebukati-lead IEBC has treated Kenyans to political leanings, bias, public wrangles, unprofessionalism, bangled elections, accusations and counter-accusations punctuated by public resignations of commissioners hence facing imminent disbandment, contrary to the letter and spirit of the Constitution of Kenya 2010 and International standards of election management. This article is dedicated to question of stable and suitable electoral management body for Kenya. How can Kenya break the jinx of incompetent EMB’s? Can Kenya finally get it right with an EMB? Which is the road to achieve this, legal or otherwise?

Centrality of EMB’s to Electoral Justice   

The concept of electoral justice is three fold, thus: ensuring that each action, procedure and decision relating to the election process complies with the legal framework, protecting and restoring electoral rights and giving people who believe their electoral rights have been violated, the ability to file a challenge, have their case heard and receive a ruling. These cannot be achieved without a proper, functional, stable and suitable EMB. In retrospect, if the election administrators deliver free, fair, credible, verifiable and lawful elections then, the need for electoral justice vanishes. The lack of a proper EMB in Kenya has over the years plunged Kenya into a constant need for electoral justice.  This has metamophosized into election violence witnessed in 1992, 1997, 2007 and 2017. Furthermore, Kenya has heard numerous changes and failure of election managers and administrators pointing to the instability hence the need to rebuild and find a solution. What does history say?

Historical Appreciation of EMB’s in Kenya

Elections in Kenya can be traced back to 1963. The first of them termed as “the pre-independence election” pitting KANU against KADU. These elections were conducted by the provincial administration but were seen to be free, fair and credible as there was no incumbent. By 1966 the tide had turned, “the little general election” meant to neutralize Vice- President Jaramogi Oginga Odinga began the journey to election turmoil in Kenya. The elections were more or less managed by KANU and the Provincial Administration whose duty was to please President Kenyatta and Mboya. KANU and President Kenyatta’s cronies kept on killing the opposition, weakening the democratic space and manipulating the election managers. This habit was picked up by President Moi, climaxed in 1988 by the Mlolongo elections where, manipulation of election results, intimidation, electoral violence were the order of the day, presided over by a dysfunctional EMB.

 President Moi eventually instituted minimum electoral reforms and allowed for multi-party elections in 1992. He attempted to create the first electoral commission in Kenya, however these gains were quickly washed away as they were all appointed by the incumbent and were marred by controversies. He then attempted to create an impartial electoral commission in 1997. Unlike 1992, this time, he appointed commissioners from a list provided by opposition parties under the Inter-Parties Parliamentary Group (IPPG). This did not however change perception of bias, rigging and incompetence of the EMB.

In 2007, the symptoms of a bad EMB turned into a full-blow disease. The Samuel Kivuitu ECK found itself in the middle of a storm. The election was flawed and the EMB failed to establish the credibility of the tally process to satisfy all the parties and candidates.  Significant, is the post- election violence that almost plunged Kenya into civil war.  For the first time, Kenyans were indicted at the International Criminal Court (ICC) for crimes against humanity, displacement of populations amongst others. It was a manifestation of a broken system. This made Kenya to stop and reflect. Under the stewardship of President Mwai Kibaki and the Rt. Hon. Raila Odinga lead Kenyans to a new constitutional  dispensation that was meant to inter alia get elections right. 

Through the Constitution of Kenya 2010, and the Act of parliament, there was a change of name of EMB, structured leadership and functions. Most important was method of appointment to ensure that the commissioners are professional, impartial and credible. This desire was however not achieved as Isaac Hasan Commission was again disbanded over controversy after 2013 general elections. Like the Kivuitu Commission and Moi’s electoral Commission, they were marred by allegations of bias, favourism and corruption. Again parliament through a joint parliamentary group lead by Sen. Orengo and Sen. Murungi amended the law and set the stage for a new Electoral Commission. Kenya has however remained at the same place as the Chebukati-lead Commission was responsible for bangling the 2017 presidential election. They have played out their bias in the public gallery. The Commission and the secretariat have been at odds over corruption allegations and with their days are numbered.

So, why is Kenya revolving around the same place with regards to EMBs? If history is to go by, Kenya’s election managers seem to have a life expectancy of five years. This kills stability and institutionalization of elections. Time has moved and with it revolution of the law, however, there is need to rebuild the IEBC and to find stability.  Which is the route for this?

Making the Appointment of Commissioners an Apolitical Process

There is one common denominator in all the EMBs since the conception of elections in Kenya. They are highly politicized. The politicians from the Government, opposition or parliament always wants to manipulate or influence the process of appointment of officers or commissioners of the EMBs and the working of the commission.. Inspite of the law advocating for a competitive and professional process in appointment of commissioners, the politicians still find a way to influence who is appointed. This means that although Kenya seems to have moved on, the mentality is that of the IPPG in 1997. This leads to a short lifespan for the commissioners as politicians interests are often short lived. In addition to this, are the wrangles and bias within the commissioners as a result of loyalties to different parties and politician as manifested by the present IEBC.  One solution for this is to kick or minimize political influence. Public participation and Kenyans owning the process may also help in changing things and getting people who are professional as well as neutral in the commission. The other proposal has been to get foreigners-especially for the leadership- who have the education and experience to run election in Kenya. Given that they are foreigners, they may not owe allegiance to the politicians and hence neutrality and impartiality.  

Legal and Legislative Framework for the EMB

The Constitution of Kenya 2010 promulgated in the backdrop of the 2007 post-election violence was meant to provide principles and a road map to free, fair, credible and verifiable election processes. The IEBC is established in article 88 of the supreme law. The law is elaborate on the procedures of appointment and the functions of the commissioners.

The IEBC Act No. 9 of 2011 further elaborates on function and composition of the commissioners. There is however, need to amend the law to synchronize the functions of the secretariat and the commission. Another area of amendments could be section 30 of the IEBC Act. Those who run elections in Kenya need to be held personally responsible when elections go wrong. If this is done, future leaders will not take election management as a joke as they presently do. There may be also amendments with regards to the structure of IEBC. The rationale for this is if there is need to change, then, change of personnel only is not sufficient.   

Civic and Political Education for Kenyans  

Developing a political culture which is bread by civic education may help in building a stable IEBC. Kenyans need to understand the pivotal role played by the IEBC. There is need to understand the relationship between democratic elections, leadership, development and the needs of the people. Kenyans need also to understand the working of IEBC and the avenues for challenge in the event of a complaint. Civic and political education may also help Kenyans to deal with the ghost of the past. Elections officials should be protected from intimidation and violence and not at the mercy of politicians. It is ok to play the tune of our favorite politicians and support or condemn the IEBC whenever it is relevant, however,  that will not help Kenya institutionalize elections   

The IEBC and the Other Agencies

The IEBC should be aided by the other Government agencies. One of the major reasons for their failure is that they are always looked at in isolation. Other than the police and the ministry of interior, the office of the Attorney needs to be very active to ensure that EMB’s always abide by the law. The Office of the Director of the Public Prosecution has a role to ensure that those who commit electoral offences are convicted, inclusive of senior election officers.    

In conclusion, it is important to rebuild the IEBC. It may be important for President Uhuru Kenyatta and the Rt. Hon. Raila Amollo Odinga, along with parliament to critically look at these issues and perhaps consider change of tact and philosophy when dealing with IEBC

By

Ouma Kizito Ajuong’Advocate

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Published by

Kituo Cha Sheria

Legal Advice Center

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