By Dr Willy Mutunga
Elections are an important pillar of our democracy. The right to vote must not be taken lightly. The duty to protect that vote is also an important democratic imperative. There is an emerging, and a rapidly entrenching notion, that electors or voters no longer decide who their leader are – whether in party primaries or the general election itself – and that leaders are decided either by party barons, manipulated electoral management agency, or by the courts.
In Africa, there is a widening chasm between voting and counting – an irony of literacy where peasants (most voters) know how to peacefully cast their ballots during the day, but graduates and computers (presiding and returning officers) forget how to count on election night. There is urgency in changing this perception and/or reality, to reclaim and reaffirm public faith in electoral politics. The IEBC has an oversized role in this regard, but only if it conducts itself competently, credibly and fairly.
But IEBC cannot achieve this on its own. It needs an enlightened political leadership and engaged citizenry. There is no doubt that for a truly independent electoral commission to emerge, the political class needs to drop its practice of capturing and enslaving the commission – completely rendering it incapable of discharging its mandate. The political class wrongly sees itself an ‘owning’ every space, initiative, or decision in the country, a falsely ‘political class as sovereign’ notion that precipitates overreach and disregards the constitutive and operational autonomy of independent institutions such as IEBC, and even the Judiciary.
The Constitution created independent institutions precisely to cure this mischief – as a necessary bulwark against the highly predictable proclivities and mission creep tendencies of the political class. We cannot create independent institutions then deny them that independence through the bullying of the political class. And when those institutions fail because of such political infiltration, we turn around, blame them, disband them and then the silly cycle begins afresh with another predictable silly result! Our political class must be self-respecting enough to allow independent institutions to work.
But I have also come to learn that constitutional independence does not work on its own. The leadership and membership of these institutions matter much more. IEBC must fight for its independence by rejecting patronage and partisan politics and through its conduct, comportment and decisions, project and elevate its authority effectively. The division that the Commission showed in the last election went a long way in sapping away public confidence.
Elections have become existential contests rather than civil contests between ideas and policy choices. This absolutist view of elections is what has led to the over judicialisation of politics and militarisation of politics, thereby giving courts (and security agencies) power to determine who the leaders are, instead of the citizens.
It is astonishing that the current IEBC assumed office only seven months to the general election. This was reckless and irresponsible on the part of the country. That it even managed to organize the six-tier election is a mini-miracle. The demand on the Commission to deliver on the general elections within this short period of time must have been huge. Added to Kenya’s unique legal, political and administrative minefield that attend our elections, the pressure must be have been incalculable. The political class slow-pedalled and mismanaged the transition from the old Commission to the present one. And even today, almost four years before the next election, the Commission is debilitated and cannibalised, and the political class is in lala land – evidently unbothered waiting until the last minute to deal with the outstanding issues in the Commission. There is urgency in getting the Commission working properly and in its full capacity.
I do not wish to dwell on the 2017 General Election, but allow me to provide a few reflections on our electoral processes by highlighting some issues that I think we also need to address.
First, is the manner in which political parties conduct party primaries. Political party primaries have become theatres of the absurd characterised by patronage, violence, ineptitude, rigging. Whereas considerable progress has been made in developing internal party dispute resolution mechanisms these are still not effective as most disputes still find their way into the court system.
We need to remember that political parties are institutions that mobilize the people towards capturing political power. This obligates them to entrench democratic values and principles in their internal systems, especially party nominations. I urge all players, including parliament, political parties, the Registrar of Political Parties and the IEBC, to adopt a multi-sectoral collaborative approach in developing a legal, regulatory and administrative framework that will promote internal party democracy.
Second, there is need for a national conversation on the practicability of critical timelines within the electoral process. For instance, the Constitution compels the Supreme Court to make a determination on a Presidential Petition within 14 days of its filing. From experience, this limited time forces the Court to sit for long hours during proceedings, grants much shorter time for the conduct of important processes like scrutiny and submissions, and limits or even bars parties from preparing adequately for their petitions. The proposal made by the Judiciary Committee on Elections to extend the presidential election petition by another 16 days merits attention.
Third, statutory enactments and amendments by the legislative arm of Government should provide reasonable time for implementation. Undertaking piecemeal legal reforms close to the elections leads to inconsistencies and administrative challenges in the application of the law. Furthermore, we should consider the possibility of staggering elections. The IEBC conducts polling for six elective positions concurrently. The undertaking is quite daunting and demanding in terms logistical planning and processing of results. This is a debate that Kenyans need to have.
Fourth, we need to cure the country of the strong scorched-earth electoral culture. We shed too much blood, damage too much property, steal too many votes, rupture too many friendships, destroy too many institutions, throw too many ethnic insults, worship too many false gods and spend too much money during our electoral contests.
Elections have become corrosive and divisive in a manner that haemorrhages the country in an eminently destructive way. They have become existential contests rather than a civil contest between ideas and policy choices. This absolutist view of elections is what has led to the over judicialisation of politics and militarisation of politics, thereby giving courts (and security agencies) power to determine who the leaders are, and not the citizens. I believe that if the IEBC were to assert its authority and competently and fairly manage the electoral process, the social costs of elections would considerably go down. Similarly, if leaders put national interests first, then the fear of exclusion that drives this desperation would evaporate.
Fifth, the independence of the IEBC can only be guaranteed if its operations are independent of any Executive, Legislative or foreign control and direction. An institution can only speak of independence if its processes are not prone to manipulation from executive, parliamentary or international misadventure. It is about time we interrogated and stopped the hugely negative influence of the intelligence and security operatives in Kenya’s electoral processes, particularly since 2007. Similarly, the international community also pays an over-sized role at the electoral commission and this needs to be reduced if not eliminated completely. Therefore, to cushion the Commission from financial incapacitation, the Independent Electoral and Boundaries Commission Fund needs be operationalised.
Lastly, the role of technology and technology companies in Kenya’s elections also need urgent examination. It has emerged as a contested issue and if the country is not careful, we may hand over the election of our leaders not to voters, parties or courts but to technology and data management companies.
The Constitution of Kenya has elevated public participation and inspired citizen vigilance, to the extent that unless harnessed into meaningful engagement, it can be a recipe for constant standoffs and unnecessary legal battles between the IEBC and the various stakeholders in the Electoral Process. If the Commission continuously engaged stakeholders and the public at large in its processes, it would not only enhance trust among stakeholders but also reduce the cost of conducting elections. The reason our ballot papers have security features that are equal to, if not more than, our currency is because of the trust deficit among the electoral stakeholders. (
— This is an abridged version of the speech delivered by Chief Justice (Rtd) Dr Willy Mutunga in February at the launch of the post-election evaluation report.