By Kelvin Njuguna Mugwe
Calls to disband the Independent Electoral and Boundaries Commission (IEBC) have never been this strident and ubiquitous. It is not surprising that the chief proponents of the disbandment are the principals of the Coalition for Reforms and Democracy (Cord) who have had a litany of complaints against the commission since the 2013 elections. The Kenyan clergy has recently joined this bandwagon stating that free and fair elections would be unattainable if all stakeholders do not engage in a sober discussion on the future of the IEBC. The integrity and independence of the commission as is currently constituted has also been questioned by previous beneficiaries of a flawed elections system, Kanu. The ruling Jubilee coalition appears to be the sole stakeholder in the electoral process that is content with the current commission albeit, cautiously.
Those advocating for the disbandment of IEBC are not short of reasons to justify their calls. The commission has been riddled with queries regarding its veracity and autonomy. It has been accused of engaging in sordid deals as well favouring the ruling coalition. The former accusation is premised primarily on a corruption scam tagged the “Chickengate Scandal” where it is alleged that officials of the Interim Independent Electoral Commission (IIEC) and their counterparts from the Kenya National Elections Council (Knec) were bribed so that they could grant printing contracts. A damning report by the Public Accounts Committee (PAC) which brought to the fore squalid tender deals further put a dent on the image of the commission. The latter accusations on the other hand are premised on the 2013 General Election outcome coupled by the recent rejection of signatures collected for the Okoa Kenya referendum initiative spearheaded by Cord and the civil society.
But while threats have been firm and focused, attendant action has been feeble if not completely absent. The Constitution of Kenya 2010 under Article 251 outlines the lucid process of removing commissioners but the execution of this provision by Cord may prove counterproductive. This is informed by the fact that a petition for the removal of commissioners should be consented by a House dominated by the ruling coalition, which has no qualms with the commission. In light of these underlying facts, Cord has probably been left in a quandary based on its inaction. This article seeks to demonstrate why the threats to disband the IEBC should remain in the current state of doldrums.
Installation of a new electoral commission may not yield the much desired outcome. The Independent Electoral and Boundaries Commission Act, No. 9 of 2011 enumerates how a new commission should be established. Sections 1(7) and (8) of the First Schedule to the Act provide that whenever a vacancy arises in the Commission, the President shall, within twenty-one days of the vacancy, with the approval of the National Assembly, appoint a Selection Panel consisting of four persons. Subsequently, the Judicial Service Commission, the Kenya Anti-Corruption Advisory Board and the Association of Professional Societies of East Africa shall appoint one person each to complete a selection panel of seven members.
‘Genuinely compromised’
The panel is tasked with the responsibility of selecting commissioners of the new body. The names of the commissioners appointed are then approved by the National Assembly before official appointment by the President. The faithful execution of these provisions may lead to a genuinely compromised electoral body which would be worse than the current one that is faced with independence concerns that are purely speculative.
This approach is a departure from the one adopted during the appointment of the commissioners of the first electoral body after the promulgation of the Constitution. There is total derogation of inclusivity in the selection of the selection panel. In the previous arrangement, out of the four members of the selection panel currently selected by the President, two were appointed by the then Prime minister. The current leader of Cord, Raila Odinga, therefore, played a significant role during the constituting of the current body, a privilege he enjoys no more as far as subsequent commissions are concerned. Also the nascent Judicial Service Commission has been recently compromised, especially by the ruling coalition that is hell-bent on controlling the Judiciary. These facts are a clear illustration that the selection panel shall be greatly inclined towards the ruling coalition and will simply appoint Jubilee-affiliated commissioners; after all, he who pays the piper calls the tune. In light of the foregoing, the much coveted independence of the commission shall remain a pipe dream unless drastic and immediate changes are made to the Act.
The Independent Review of Elections Commission (IREC) (The Kriegler Commission Report) findings further lend credence to the argument that the commission should not be disbanded at this point in time. The Kriegler-led commission, which was a product of the botched-up 2007 elections, indicated that the appointment of new electoral commissioners so close to the elections can “potentially cause significant disruptions in planning and implementation” of the elections. The report cited the appointment of new commissioners of the defunct Electoral Commission of Kenya (ECK) in January 2007 yet the general elections were to be held 11 months later. These conclusions arrived at by the Kriegler-led commission are buttressed by the statements made recently by the Elections Observation Group (ELOG) which urged the stakeholders to resolve pressing matters surrounding elections management. Replacing the current commission 17 months before the 2017 General Election could potentially create a dicey situation for both the new body and the nation.
It is also regrettable that the essential prerequisites for the removal of a commissioner of an independent body as enumerated under Article 251 of the Constitution have been haphazardly omitted in the discourse of disbanding the commission. The grounds for removal such as serious violation of the Constitution or any other law, gross misconduct, incapacity to perform functions or bankruptcy have been scandalously substituted by grounds that are inherent with political intonations. It was the considered submission of the Law Society of Kenya in “Petition No. 518 of 2013”, where it was an interested party, that violations under Article 251 must be proved by sound and legally obtained or admissible evidence. There has been a dearth of any evidence to bolster the suggestion the electoral body should be disbanded by dint of Article 251. Loss of public confidence, which is not recognised by a law as a basis of removal of a commissioner, has been repeatedly stated as the main reason why the commission should pack and go.
Meet threshold
It is also an ancillary argument that Article 251 becomes operational against an individual commissioner and not the team as a whole. Violation of the law by an individual official, regardless of how atrocious it may be, should not be attributable to the rest of the commissioners. The Chickengate Scandal and the PAC report indict specific individuals. In the event the named persons are found culpable, they should be subjected to removal as individuals.
The magnitude and importance of activities carried out by the IEBC cannot be over-emphasized. This trite fact has therefore imposed on the commission the responsibility of ensuring its integrity and independence is beyond reproach. However, trifling errors that are made to appear monumental and colossal by the political honchos are not plausible grounds to whimsically disband the electoral body.
In conclusion, the confines of the law should be staunchly adhered to by ensuring that the threshold for removal of commissioners is met. Secondly, to avoid the fate of jumping from the frying pan into the fire, the commission should be allowed to complete its mandate within the originally recognised timelines. Instead of chastising the body as a whole, tangible steps should be initiated that aim to strengthen its structures before the 2017 elections. This strengthening includes, but is not limited to, the legal removal of commissioners that are guilty of wrongdoing. Lastly, there should be a deliberate effort to amend the IEBC Act so as to change the current mode of appointing commissioners. The Inter Party Parliamentary Group (IPPG) formula, adopted in 1997 and envisaged the consultation with opposition parties, appears to be the most viable cure to this particular glitch.
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