Fundamental changes a must for IEBC to run a credible poll

The whole world knows the Independent Electoral and Boundaries Commission (IEBC) is a total disaster. Kenya’s chief electoral agency has zero – zilch – credibility. Kenya’s Supreme Court – hitherto viewed by legal scholars as conservative, pro-establishment, and cautious – has thrown the entire book at the IEBC. In the court’s historic ruling, the IEBC was virtually deemed a criminal enterprise.

It committed election offences, many of them an abridgement of the Constitution, with impunity. That’s why the court ordered a fresh presidential poll. But one question remains – how can a “criminal enterprise” conduct the fresh election? Criminals belong in jail, not at the IEBC. That’s why there must be radical – and I mean fundamental – changes at the IEBC for it to run a credible election.

This requirement – of reconstituting the IEBC – is unarguable and incontestable. Every ostrich should pull its head out of the sand. Last Saturday in Atlanta, Georgia, I sat on a panel on the August 8 election with Robinson Githae, Kenya’s Ambassador to the United States. Mr Githae is an old friend and I have always respected him.

But his comments about the election and the IEBC at the conference organised by the Kenya Scholars and Studies Association (KESSA) dropped every jaw in the room to the ground. The estimable ambassador told the packed room that the election was free and fair, and that the Supreme Court was totally incompetent in its ruling. He and Jubilee may drive Kenya off the cliff.

Enjoy state protection

Why would the IEBC agree to major reforms if senior people in Jubilee blame the court and not the IEBC for the rigged election? There are senior people in the IEBC who from all appearances enjoy state protection. That’s why they are arrogant and unbending, even after being stripped naked by the truth. I am – and I am sure we all are – flummoxed by the IEBC’s intransigence.

The IEBC itself has told us that the election was rigged. Chair Wafula Chebukati’s explosive letter to CEO Ezra Chiloba, which was leaked, outlined in black and white how the election was rigged. That means the Supreme Court and the IEBC agreed that the election was stolen. This is the question – what next?

Elections are similar to judicial processes. In law, justice must not only be done, but must be seen to be done. That’s what builds confidence in the people and imbues the Judiciary with legitimacy and credibility.

Similarly, elections – which are a process, and not an event – must largely be seen to be problem-free so that they can be viewed as reflecting the will of the electorate. Where, as here, both the Supreme Court and the IEBC have impugned the election, such an election must be nullified and voided. It can’t be said to be free and fair. The body that organised the rigged election cannot therefore organise the repeat poll as though it wasn’t struck by an earthquake.

This is what needs – and must – to happen before the IEBC can give us a credible and legitimate poll. First, big heads must roll, and do so immediately. I am cognizant of the legal, political, and practical bottlenecks here.

That’s why both NASA and Jubilee must quickly agree on a package of changes. Mr Chebukati, the Chair, must resign. He can’t be fired but he can be sent home to his village with a payoff. He can’t stay because the rigging happened on his watch. He was either complicit, or incompetent if he didn’t know about the rigging conspiracy. He should be charged with election offences and other crimes if he won’t resign. He has zero credibility to preside over another poll.

Second, the other commissioners should be given a chance to honourably resign or be charged with election offences. Those who refuse to resign – but may be culpable – do so at their legal peril. It’s clear the IEBC’s commissioners have a highly toxic relationship with one another. They’ve been attacking each other.

How can a hissing pit of snakes be allowed to organise the fresh election? The rot at the IEBC is deep and systemic – cancerous. We shouldn’t allow them to organise another rigged election and possibly push us to civil conflict. Kenya doesn’t belong to the IEBC – it belongs to us. If we don’t act resolutely and boldly – and things go to hell – it will be on us.

Shocks the conscience

Equally important is Mr Chiloba’s fate. The smug factotum should be fired pronto – like yesterday. He is at the root of the rigged election because he’s the bureaucrat who controlled all the systems. The thought that he is even around today shocks the conscience. He – and his principal deputies – must be sent packing immediately. They can – and must – be sacked summarily. My advice to NASA is to refuse to go to the polls unless – and until – these changes are effected.

Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua.