By Kibisu Kabatesi
NAIROBI, KENYA: The wave and thrill of second-guessing Cabinet appointments has overshadowed a probe into County Assembly nominations. This scandal should have drawn as much undivided euphoria as the Supreme Court ruling because of its impact on whether the constitutional provisions on representations are mere words or have meaning in our democratic transition.
Our sense of probity must surely be pricked when upon publication of special interest County Assembly nominees by the Independent Electoral and Boundaries Commission (IEBC), there is countrywide rejection of the list. Things must have gone wrong in the IEBC when affected individuals alleged foul play, communities are up in arms, political party members rebel and the parties disown the IEBC list.
To set up a tribunal to sort out the mess is scratching the surface of what should be a thorough investigation to establish whether the IEBC, political parties or connivance and therefore criminal liability led to the treasonous contravention of the Constitution guarantee of minority, marginalised, women and youth representation in governance. Over 500 cases have been filed against the IEBC nominations. It is understandable when an individual contests the nomination of another because the case is against the party or IEBC. But there are whole batches of unpublished political party cases contesting what the electoral commission published. Yet a tribunal can in the interim only cure individual ambitions derailed but will not correct the violations of rights.
It is quite telling when a political party and communities contest against IEBC. Several questions beg for answers; how did IEBC end up with the names it published? Did parties present lists that met the constitutional and legal requirements? Did IEBC scrutinise party lists to confirm they complied? Was there connivance between renegade party apparatchiks and IEBC personnel to taint the lists? If the lists are contentious, how did the commission give parties a clean bill of health and allow parties to field candidates?
The provisions in the Elections Act 2012 are a derivation of the clauses on Representation in the Constitution. They provide that in order to ensure disadvantaged groups do not miss out in democratic governance, political parties would present the IEBC with representative special interests lists before elections for possible proportional nominations after elections.
The women category also benefits from a stand-alone provision requiring not more than two-thirds majority representation of either gender in the County Assembly.
What and where is the mischief these provisions are meant to cure? One; the inability of special interest groups to effectively compete in elections and therefore ending in marginalisation. Two; end the infectious habit of nepotism and cronyism in nominations. Three; provide for a democratic political reward system. Indeed, the lists were a campaign weapon for parties since they could attract votes depending on the strengths of interests catered for in the list.
But what happened? The political parties were not compelled to make their lists public as required by law and no party made the lists a campaign issue. Consequently, the whole essence of the Constitution has been abrogated. Through connivance, the full force of the old order of nepotism and political cronyism has returned at the expense of the guaranteed beneficiaries. A casual glance at the published lists, even without the benefit of the logged appeals, reveals an astonishing truth; tribalism is alive and well. In cosmopolitan and urban areas where the vote count suggests divergent communities voted for the dominant coalitions or candidates of dominant communities, the nomination lists contain a thoroughbred of one ethnic community. Wouldn’t this contravention of minority rights have raised eyebrows at IEBC? However, what is being contested more is the duplicity where individuals on lists do not generically represent the purported special interests. The most abused are youth and people with disabilities. There are nominees who are not youth in age or bear no disability.
Yet as it emerges, this is not all. Communities and clans from the same electoral area feel short-changed in the top-up women category. Positions have disproportionately gone to one electoral area in a county or ward disfavouring swathes of minority communities and some clans. The result is that the principal of proportional representation of marginalised and minorities has entrenched negative ethnicity. The fear that devolution would create ethnic enclaves is being realised. Despite the law that calls for representation of ethnic minorities and the marginalised, it is most likely that in choosing the County Executive and employment in County Public Service, the trend towards ethnicisation will be in vogue in counties.
Unfortunately, there are only two recourses but both infantile. Courts can intervene in upholding the law that, again, is easy to circumvent by the political elite. Amend the Elections Act, but we would be asking the same suspect culprit masterminds in Parliament to undo what is politically profitable to them.
I am convinced the mixed bag of a system of direct elections and proportional representation is not working because of the entrenched wisdom of political abuse. Now that we are sober beyond the dysfunctional breed that forced us into the “consensus” Constitution 2010, it is time to cheer up the document with tested realities. The way out may be to repeal the whole governance and representation infrastructure in preference to a system of proportional representation across all levels.
It is not wishful thinking to propose that we can, with time, tackle the inability to campaign on issues and lack transparency by voting for parties on the basis of manifestoes. After elections, let us legally bind parties to honouring party lists in allocating seats as deposited with the electoral body. This is a much simpler and accountable electoral system. We must do away with voting for individuals.
