Proposed poll date may lead to constitutional crisis

At the beginning of the “Animal Farm” all animals are equal. Enslaved, they fight as one to gain independence from their human masters. After gaining independence, the pigs take over the seats of their masters at the table. Now paranoid of another revolution, the pigs are more sadistic and cruel to their fellow animals. They become more equal than the rest.

George Orwell could have chosen any animal to rule. Greedy and insatiable, the animal that feasts on its own faeces was chosen to sit over the heads of the rest.

Independent offices and commissions in Kenya are created by the same Supreme Law. The Constitution. Yet they are those of higher constitutional stature and with wider protection from interference from the Executive. Nothing as extreme as the fiction of the “Animal Farm”, but with striking similarities.

For example, from a superficial glance it may appear that the office of the Attorney General is more powerful than that of the Director of Public Prosecution. The Attorney General serves at the pleasure of the President and can be relieved at any time and for no reason.

On the other hand, the Director of Public Prosecution serves at the pleasure and under the authority of the Constitution. He determines if, when, why and who should be charged with any criminal offence. He is only answerable to the courts.

The Constitution places selected independent offices and commissions on a pedestal and clothes them with power and security in equal measure because of the cardinal place they hold in the maintenance of democracy and good governance. The IEBC is one such commission.

With the power to alter boundaries, register voters, conduct elections and determine electoral disputes within political parties, it can preserve or destroy the country in one masterstroke. Recall the aftermath of the 2007 General Elections. The protection afforded to the IEBC is not for the sake of the individual commissioners but for the country and the Kenyans they are sworn to serve.

The Constitution places certain safeguards to protect the interests of the country and citizens from abuses by members of or such commissions. Any Kenyan can present to Parliament a petition for the removal of a commissioner.

Removal proceedings through independent tribunals is another mechanism through which commissioners can be ejected if they are found to be of gross misconduct. Or if they have violated the Constitution, the laws, or are unfit to hold office.

There is yet another important but largely unknown constitutional safeguard. A commissioner sitting in any of the commissions protected under Chapter 15 of the Constitution, for instance the IEBC, can only serve for six years. This term cannot be extended.

There have been proposals to change the date of the next General Election from August to December 2017. The nine commissioners of the IEBC, sworn in on November 9, 2011, must leave office by November 8, 2017. The appointment of fresh members of IEBC a month to the General Election, should the date change, will be ignoble.

Should the General Election be conducted in August 2017 as provided, it will certainly be interesting to see how commissioners - with only one month left in office - will conduct themselves.

On the other hand, if elections are conducted on the second Tuesday of August 2017, and there is a Presidential Election Petition leading to a run-off between the top two Presidential candidates, it is likely that by the time of such a Presidential election run-off there will be no commissioners validly holding office at the IEBC.

IEBC has advised Kenyans that the date of the next General Election can only be changed through a referendum. Is such a referendum inevitable?