By Paul Kauku
The Independent Electoral and Boundaries Commission (IEBC) has the mandate to clear candidates who seek to occupy electoral offices, but such power is not necessarily monopolistic in its application. Chapter Six of the Constitution of Kenya is singular on what amounts to integrity but pluralistic in the manner in which integrity can be tested and arrived at.
It is important to recognise the roles of other players, such as Ethics and Anti-Corruption Commission (EACC), the Directorate of Criminal Investigations (DCI), Commission for University Education (CUE), Law Society of Kenya (LSK) and Council of Legal Education (CLE) amongst others.
Assessing the credibility of the IEBC’s clearance process should be seen beyond the lenses of elections to the necessity of having a governance process through which voters and the political candidates establish and define a system of accountability. The social contract between electors and elected cannot be monopolised by the wisdom of one institution as it is not just an issue of election.
Last month, IEBC formally cleared four (4) Presidential Candidates from a possible fifty-six (56) aspirants in readiness for August General Elections. The four (4) are Raila Odinga of Azimio la Moja One Kenya Coalition Party, Dr William Ruto of United Democratic Alliance (UDA), Senior Counsel, David Mwaure Waihiga of the Agano Party, and the flamboyant Prof. George Luchiri Wajackoyah of the Roots Party. While there was drama, protests, barricades and borne fire from candidates who didn’t make it to the ultimate list, IEBC stood stood by its elimination process.
IEBC used a twelve (12) point checklist: electronic and printed list of forty eight thousand (48,000) supporters’ signatures from at least twenty four (24) counties, who must be registered voters; certified copies of academic qualification documents from a university recognised in Kenya; certified copies of the national identification documents that were used to register the aspirant as a registered voter; a passport photograph size on a white background; a nomination certificate duly signed by the nominating political party; the political party’s code of conduct; list of proposer and seconder from the nominating political party, who must be registered voters and members of the political party that the presidential aspirant is vying on; a nomination fee of Sh200,000 presented through a bankers’ cheque; statutory declaration evidencing moral and ethical requirements under the leadership and integrity act and Chapter six (6) of the Constitution; and a campaign schedule.
These were not new requirements to the aspirants. They knew what was expected of them all along. That some decided to be dramatic is testament to their [lack of] seriousness as contenders. As a result of that orchestrated drama, 160 petitions were filed with Elections Dispute Resolution Committee, which was expected to adjudicate over within 10 days. If a disputant felt aggrieved with the findings of the committee, he or she had the right and freedom to file an appeal with the High Court. Unfortunately, chances of such persons to be on the ballot were then technically dimmed, since IEBC was expected to commence printing of ballot papers soon after. In unsaid terms, it seems that the Committee stands as the last and probably the final avenue to pursue a recourse.
There is also a list of 241 aspirants as tabled by Ethics and Anti-Corruption Commission (EACC) on account of integrity issues that are likely to be barred to contest for political position – ‘likely’ because IEBC has indicated their incapacity to investigate and authenticate such allegations (matters), despite the weight of those allegations. The electoral commission has further stated that it is not bound by the decisions of the EACC on aspirants’ integrity.
This begs the question of whether institutional referral mechanism forms part of due diligence. The court could be the only exemption within an institutional referral system, since such institution must be moved to administer or adjudicate any matter brought before it. Is there any moral or legal obligation for IEBC to totally ignore material facts brought before it by other institutions, which consider Chapter Six as sacrosanct to office holders? While there could be differences in opinion and interpretation of what institutional mandates are, there is consensus in the heart of every Kenyan, about what integrity constitutes.
IEBC has the opportunity to demonstrate the powers within its scope, considering that such are legal, administrative and social. Being able to use a socio-legal and administrative process to adjudicate over political issues often jammed with lots of community mobilisation and irrationality whose intrigues sit outside wisdom and character, is an advantage. Being the sheriff in town regarding political matters as is partially seen, IEBC can marshal and tether politicians to a character formation regime, which would then undo aspirants’ entitlement and high handedness for competing by their own set of rules, values and illusions. IEBC can help us underscore the fact that Kenya is not only a Republic but a country where rule of law is paramount – a country where the office of the Director of Public prosecutions (ODPP), the DCI, EACC and Office of the Registrar Political Parties (ORPP), alongside LSK and others carries the voice of ordinary citizens on matters of integrity.
Dr Ekuru Aukot, for instance, who unsuccessfully vied for the President of the Republic of Kenya in 2017, has this year been disqualified for failing to present a list of 48,000 supporters along with copies of their national identity cards. Somewhat unsurprisingly, IEBC turned Dr Aukot’s failure into an integrity issue. The requirement to have 48,000 signatures from a possible 24 counties for one to qualify to contest for presidency is not a measure of integrity and legitimacy. Anyone with deep pockets can easily pay people to
While we are all in agreement as to what integrity is all about, approaches towards realizing it are as many, referral mechanisms being one of them. As such IEBC cannot purport to be the sole integrity czar through developing and implementing rules to the exclusion of all others. It is absurd as it obnoxious. (
— Mr Kauku, is the Monitoring, Evaluation, Adaptation and Learning (MEAL) Officer at the Legal Resources Foundation Trust (LRF)