MPs in bid to amend law, clip Independent Electoral and Boundaries Commission powers

Over 37 Jublee MPs led by National Assembly majority leader Aden Duale ( middle ) address the Media at Parliment Buildings on 20-08-15 PHOTO MOSES OMUSULA

A political scheme is taking shape in the National Assembly as MPs seek to amend the law that, if approved, will render the electoral commission powerless in taming electoral malpractices.

In a three-pronged legislative onslaught on the Independent Electoral and Boundaries Commission (IEBC), the MPs want to quash powers of the commission to disqualify rogue candidates without authority of the court.

The MPs are also keen to intimidate the IEBC to prevent a repeat of mistakes witnessed in 2013 ahead of the 2017 General Election. The Public Accounts Committee is scrutinising what happened at the commission in the procurement of voting kits, and analysing the readiness for the next polls.

If they get their way, the MPs also plan to delete section 107 of the Elections Act that guards against indiscipline and disorder in the campaigns and on voting day. The section gives IEBC staff powers to arrest electoral offenders, haul them to court and apprehend any official using government vehicles or money to campaign.

When MPs were made aware of the provision giving IEBC power to “impose sanctions against a person who commits an offence ... pending the hearing and determination of the offence,” they hit the roof.

In simultaneous shouts, one of the MPs said “tutatoa hiyo!” and another echoed “Yes, we have to delete it!” For a moment, the meeting looked like the celebratory party of Orwellian proportions.

In the high-pressure meeting of the National Assembly’s Justice and Legal Affairs Committee at Continental House, Nairobi, MPs Agostinho Neto (Ndhiwa), Olago Aluoch (Kisumu West), Peter Kaluma (Homa Bay Town) and Tom Kajwang’ (Ruaraka) noted it as “one of those things that have to be dealt with.”

The legislative resolve came as a rude shock for IEBC commissioners Thomas Letangule, Mohamed Alawi and Lilian Mahiri-Zaja together with Chief Executive Ezra Chiloba, who attended the three-hour meeting held Tuesday. But the commissioners told the MPs that once an election court makes a finding that a candidate committed any form of electoral fraud, then, the IEBC has to disqualify the individual.“We must have consequences,” said Mr Alawi.

Taking lessons from the 2013 elections, more so with the avalanche of election petitions that exposed runaway violence, bribery and intimidation in the polls and the political party nominations, the commission had sought powers to disqualify some candidates as soon as an election court finds prima facie evidence of electoral offences.

Standard of proof

But chairman of the committee Samuel Chepkonga (Ainabkoi) led his troops to shoot down the proposal on the understanding that an election petition, is a civil suit, while electoral offences are criminal in nature.

Mr Chepkonga said an election court “has no way of investigating electoral offences”.

“The standard of proof in civil case is based on the balance of probability, while in criminal cases the standard of proof has to be beyond reasonable doubt,” said Olago who insisted that a person must be convicted in a court of law before they are barred from participating in an election. The MPs want Director of Public Prosecutions Keriako Tobiko and Inspector General of Police Joseph Boinnet given powers to pursue offenders: The police to investigate; the DPP to prosecute – often a lengthy process that takes months, or even years.

It is easy to understand why MPs want to clip the powers of IEBC. The MPs know the shortcuts to get elected, so they are willing to take their chances in the slow court room for a criminal case with a higher standard of proof, rather than gamble their political future in the hands of the referee – the IEBC.

The cases take long; the MPs can drag them for a long time, and because elections have deadlines, they will be well into their five-year term by the time an election is held.

Long used to the indiscipline and cronyism in political parties especially where party nominations are handed out to specific candidates, the MPs are keen to review the law so that the party bosses get the chance to nominate to the Senate, National Assembly and the County Assemblies their backers who lose in an election.

They say the list of party candidates for nomination has to be handed to the IEBC after elections, and not before the way the IEBC wants. The IEBC had wanted to lock the list to stop ‘party-hopping’ during nominations and elections.

To make sure that all eligible voters cast the ballot, the IEBC insists that only those with valid identity cards shall be allowed to register as voters. Presently, even those with a waiting card can register as voters alongside the ID card holders. IEBC has also proposed to cap the number of voters per polling station to 700, to ease their work.