Why IEBC must be reconstituted

In December 2007, after 5 years of steady economic growth under the NARC government, the country was suddenly thrust into a political crisis following a botched election. From an 8 per cent annual rate of growth, we recorded a miserable 2 per cent in 2008 after the post-election violence that claimed 1,300 lives and internally displaced nearly half a million people. This loss of momentum in economic growth has always been there every time Kenyans panic over elections

Even after enacting a new Constitution in 2010 that sought to address the constitutional shortcomings that led to the crisis in 2008, the results of the Presidential elections were still contested in the Supreme Court in 2013.

Given the time allowed to hear the appeal by CORD, the court process proved unsatisfactory, producing yet another crisis of confidence in the Supreme Court and the Independent Elections and Boundaries Commission (IEBC) whose performance in court created doubt regarding its impartiality as an arbiter in election contests. That lack of confidence in the IEBC continues to deepen as we approach the coming elections in 2017.

In 2010 during the referendum campaigns for the new Constitution, the NO group rejected the Constitution because 20 per cent of it was deemed to be unsatisfactory; amendments were needed before it could be approved by Kenyans. The YES group concurred but they advocated approving the Draft Constitution and amending it subsequently.

In the end, the leadership of the NO group assumed state power after the 2013 election while the YES group went into the Opposition. That doubtful 20 per cent had a lot to do with unsatisfactory constitutional provisions for managing elections.

As fate would have it, the YES leadership, once in the Opposition, started to scrutinise the Constitution to deal with the 20 per cent aspects which it had promised to amend after the election. With draft proposals in hand about two years ago, the CORD leadership proposed a dialogue with the government to discuss constitutional amendments along with other national issues which were increasingly becoming contentious and putting the future of the nation in jeopardy. At first, President Uhuru Kenyatta welcomed the idea.

After a few days, however, the President beat an about-turn and told the Opposition off. The Deputy President was more explicit in his stand. If the Opposition felt that they could arm twist the government to have some share in exercising state power through the so-called dialogue, they were dead wrong: "hakuna nusu mkate hapa!" the DP duly warned. Without engaging with a reluctant President in the important national endeavour of amending the Constitution, the Opposition decided to go it alone.

Chapter 16 of the Constitution stipulates in Articles 255-257 how the 2010 Constitution can be amended. There are certain aspects of the Constitution, such as the Bill of Rights, which can only be amended by the people through a referendum; there are others which can be amended by an Act of Parliament with clearly stated majorities. At any time, however, as Article 257 stipulates, any aspect of the Constitution can be amended by a "popular initiative".

The Opposition identified three major problems in our constitutional provisions for managing elections.

The first is to do with counting, relaying, tallying and announcing election results, particularly with regard to the Presidential elections. While the present provisions are too open-ended in Article 86(d), the Opposition proposed an amendment in the Okoa Kenya Bill which would make the counting at polling stations final so that results are not manipulated in the process of being relayed to, tallied and announced from Nairobi.

The second problem regards disputes arising out of the Presidential election. The current 14 days given to the Supreme Court are inadequate. The Okoa Kenya Bill proposes 60 days, very much like in Ghana and the US. Given the experience of the 2013 petition debacle, this is a sober and very constructive proposal.

The third issue that the Okoa Kenya Bill seeks to deal with regards the independence and impartiality of the IEBC. Current IEBC commissioners were proposed by members of the previous coalition government, appointed by the President and approved by Parliament.

With a chairman who serves as long as his commission lasts, there is likelihood that the institution can be captured by external forces when it has no other authority to report to, but the president.

Having connived to frustrate the Okoa Kenya initiative on a technicality- very much contrary to the Constitution, it is unlikely that the current commissioners would support proposals to reform IEBC. Yet these reforms are necessary to ensure an election in 2017 which all political parties, and Kenyans as a whole, will have faith in.

That is why, as a first step towards reforming the election laws and process, the current commissioners should give way to yet another "interim commission" which will perform "holding operations" while the reform process is going on.