By Koki Muli
A few months ago, the Independent Electoral and Boundaries Commission (IEBC) when setting the March 4, next year, General Election date declared it was ready to conduct credible, free and fair elections any time. I don’t share IEBC’s optimism because there are too many things to be done, which must be done if Kenya is to experience credible, free and fair elections.
There are at least five cases pending in the courts. Although the substance and their merits cannot be discussed, these significantly affect the electoral process because IEBC cannot commence a number of electoral processes and activities, critical to the conduct of the elections before the cases are resolved. The latest application wishing to halt the withdrawal of budgeted funds without an Appropriation Bill 2012, will further delay the withdrawal of monies allocated to the IEBC further slowing down operations and may undermine IEBC’s capacity to implement certain urgent electoral activities.
The uncertainty surrounding the elections date because of the pending appeal case, may also affect planning and preparations of an electoral calendar with appropriate timelines and activities. The boundaries demarcation cases affecting more than half of the newly established 80 constituencies and more critically the integrity of the IEBC report on the boundaries, means that until these boundaries cases are resolved. The case on political party hopping has the potential of requiring IEBC to conduct almost 100 by-elections should the court deem party hoppers to have resigned from the parties that sponsored them to Parliament.
The IEBC is critically running out of preparation time if elections are to be held in the fifth year or even five years after the swearing of Parliament. These delays may also lead to a constitutional crisis if elections are not held within the constitutional timelines – as the terms of the President, and other Members of Parliament and Local Authorities expire before the next elections are held.
The IEBC Act assigns it the function of resolving all issues arising from the first review relating to the delimitation of boundaries of constituencies and wards and publishes its final report within a period of four months of the date of its appointment under the Act.
Four months lapsed a long time ago and the matter is not resolved because of the pending court cases. The primary reference material for the first review was the report of the former Boundaries Commission acrimoniously adopted by the National Assembly, the secondary reference material being the report of the Parliamentary Committee. The main issue to be resolved was the re-distribution of wards or administrative units in the affected constituencies based on the Constitution and latest national population census, addressing new constituencies falling outside the population quota to ensure fairness and equity. The IEBC differed with Parliament over its report and none of them was willing to compromise in the interest of Kenya.
The Elections Act requires IEBC to create, compile and maintain the Principal Register of Voters comprising of registers of polling stations, wards, constituencies, and counties and of voters residing outside Kenya. Voter registration cannot begin until the boundaries cases are resolved for IEBC to conclude demarcation and to create polling/registration stations/centres.
Fortunately, IEBC can conduct voter education as it awaits resolution of the court cases to prepare voter information. The forthcoming elections are the first to be held under the new Constitution and a new electoral legal framework. It is also the largest Kenya election has seen so far with at least six ballot papers. The potential number of candidates per ballot paper hasn’t helped the situation. This means if there is no massive voter education, there will be very high number of spoilt ballots undermining the credibility of the elections. Urgent action is required.
The writer is an elections and constitutional law expert and lecturer, South Eastern University College