IEBC dilemma as credibility fears jolt poll preparations

The nullification of a multi-million shilling Independent Electoral and Boundaries Commission (IEBC) ballot tender for the umpteenth time has raised credibility fears on the conduct of the August 8 General Election.

From a rogue political class, conspiratorial Parliament, disorganised political parties, a conniving population, indifferent civil society to a mistrusted electoral commission, it’s a familiar story of hope against the odds.

Like the sower’s corns which fell on a rock or among thorns, analysts say it will take a miracle to have a completely free, fair and credible poll on August 8 given the attitude and actions of not just IEBC, but other players in the electoral process.

There is, however, little doubt that the bare minimum of an election - voting and announcement of winners - will take place. Against all odds, the IEBC is guaranteeing - by word of mouth - a free, fair and credible poll.

“So far, almost all the parts of the electoral process dispensed with have been dogged by controversy and mistrust. From the way the commissioners were identified to registration of voters. From procurement to conduct of primaries, everything,” Prof Ben Sihanya, a constitutional scholar at the University of Nairobi Law School told Sunday Standard.

Sihanya, who has observed electoral processes since 1992, says all the basic ingredients of a “fair, accurate, free, transparent, credible, accountable and verifiable” election are missing as the country prepares for the August vote.

Lawful register

“You saw the party primaries through which the candidates were selected. No single party that I know of used its a lawful register to conduct them. Some like Jubilee purported to use an IEBC register issued to them through the back door. From this alone, the election is polluted,” Sihanya says.

He lays blames on the feet of IEBC and Registrar of Political Parties. By now, they should have ensured parties have clear and distinct registers through which primaries can be conducted. He also blames the Judiciary for setting the “lowest possible” integrity threshold for candidates.

IEBC Chief Executive Officer Ezra Chiloba, however, says IEBC is running a “credible process” as far as it is concerned.

“Oh yes, no doubt about it. We are running and we are committed to running a credible and verifiable process all through. You can take that to the bank,” Chiloba quipped.

However, when presented with the scenario of deeply flawed party primaries affecting the final poll, he said: “There is always that fear. And that is why we kept calling on parties to do the right thing. We issued proper guidance because we knew it may affect the credibility of the poll.”

Chiloba said the credibility of the poll should not be zeroed in on the electoral commission, alone. It is also a question of political parties, Kenyans at individual levels and other institutions conducting themselves in manner that promotes the ideals of a credible electoral process. The 11th Parliament has also been accused of meddling with chances of a credible poll in the manner in which it amended electoral laws, replaced electoral commissioners few months to the poll and suspended certain laws like the Campaign Finance Act.

Credible poll

“We had identified a number of inconsistencies in some of our operative laws and pointed the same to Parliament. Unfortunately, they did not take on board some of our concerns when amending the law. That doesn’t, however, mean that we are hamstrung in upholding the principals of credible poll which are enshrined in the Constitution,” Chiloba says.

The Campaign Financing Act which would have regulated the place of unbridled use of money to influence electoral choices was suspended until after the August polls. Before the MPs moved to shelve it, IEBC had already gazetted what some thought were “obscene” campaign contribution and spending limits.

Governance specialist Tom Mboya says the limits as published by IEBC but later cancelled raised the threshold so high that it “possibly” scared off quality candidates from the race while encouraging only the moneyed. “In the very first instance, the limits as announced highly diminished the chances of ordinary people offering themselves as candidates. It was completely prohibitive and only created the perception that only the moneyed can offer themselves,” Mboya, also chairman of Democratic Congress told the Sunday Standard.

The MPs also suspended the provisions on degree requirements for Members of County Assemblies (MCA’s) in what Mboya describes as “self-serving” grounds. “Until institutions, including parliament, political parties and IEBC start behaving in a manner respectful and subservient to public that funds them, we will never have any credible public process, let alone elections,” International Centre for Policy and Conflict’s Ndung’u Wainaina says.

According to Wainaina, political parties, IEBC, the Registrar of Political Parties and other key players in the electoral process have refused to be fully accountable to the Kenyan people in conduct of their affairs. He says IEBC has been running its operations- including procurement, deployment of technology and compilation of register- in a “very opaque” manner.

Rather than implement High Court ruling on vote tallying they are appealing it. Rather than wait to compile the final register and then hire a firm to audit it, they are auditing an incomplete register. Rather than insist on constitutional threshold of integrity, they are wishing it away, he complained.

Human capacity

For Prof PLO Lumumba, the upcoming election is “one of the most well-prepared elections anywhere around” and what will matter is human capacity to rise up to the occasion and deliver the people’s wish.

“The question is whether those who man the election will be men and women of integrity enough to ensure the sanctity of the vote and deliver it in a manner that upholds vote. The election must be free and fair,” Lumumba says. Lumumba says the attitude of the key players to the election- including the media- must change if the election is obtain requisite levels of credibility to get the country moving to the next level. He cautioned about the ongoing chest-thumping by both NASA and Jubilee that they will clinch “10 million strong” and “12 million strong” votes, respectively.

“Their assumptions are obviously misguided as they exceed the number of voters in the country. You cannot achieve 100 per cent voter turnout. Much more fundamentally, you cannot have both sides winning at the same time and before the poll is conducted.” Lumumba says. Mboya says it would be foolhardy to expect a clean outcome from a flawed process. Many legal deadlines have been missed, stakeholders have not been convinced on efficiency of technology, voter education has recorded the lowest score ever and most personnel involved in the process are dishonest.

“It’s easy to blame the commission but it all boils down to values at individual level. People take their individual values to the jobs they execute on behalf of the people. It will be foolhardy to expect a quality process if it is executed by valueless people,” he says.

Public resources

The dabbling of civil servants in the elections - like Cabinet Secretaries - with the approval of the commission has also been mentioned as a factor ruining chances of a highly credible poll. Also, use of public resources, conduct of harambees and fragrant abuse of electoral code of conduct.

The latest Electoral Observation Group (ELOG) report flagged out numerous violations of Elections Act through bribery, participation in fundraisers, campaigning by public officials and political violence and tensions. To no avail, ELOG called on IEBC to enforce the Elections Act against candidates conducting Harambees, public officers campaigning, candidates bribing.

“With less than a hundred days to the General Election, ELOG observer’s reports in the months of March and April have indicated less than 50 per cent of constituencies’ voter education activities by IEBC and civil scociety,” says the report authored by ELOG national coordinator Mule Musau.

Law scholar Elisha Ongoya warns that the test of free and fair elections is both political and legal imperative. He says the distinctive thing about credibility of a poll is that it is not a 100 per cent affair, it is a cumulative assessment.

“Just like an exam, you do not need to score 100 per cent to pass. You can pass with 60 per cent marks. For a fact, our electoral process has failed a number of tests for instance in conduct of primaries and dispute resolution at tribunal level but that is not to say it has completely failed,” he says.

According to Dr Ongoya, Kenya needs a lot more sociological reforms to sanitise the electoral process as opposed to legal reforms. It needs change of attitudes from players to ensure the system works as is idealised in the law.
“Whether the credibility issues are so substantial as to vitiate the entire election is a matter for argument. For instance on non-compliance with the law, Section 83 of the Elections Act is clear that simple non-compliance with the law or parts of it does not translate to voiding of the election altogether,” he says.
The non-compliance must be such that it is material enough to affect the result of the election.

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