Electoral agency must preside over free, fair and credible elections

The elections are fast approaching and the Independent Electoral and Boundaries Commission is busy preparing for them. The chairman means well, and he wants to do the right thing; hold free, transparent and verifiable elections. He however finds himself cornered by serious opposing forces. From the Supreme Court Judgement, it is clear his commission had problems conducting the elections. The court said the electoral commission committed “illegalities and irregularities” in the election.

They went ahead to say the commission had failed, neglected and refused to conduct credible, transparent and verifiable elections as required by the constitution. These are grave words and the chairman cannot ignore these serious statements and proceed with business as usual. He must interrogate the processes and find the culprits, and he must do it before October 17, 2017.

Declaration

On July 8, 2002, the African Summit heads of state meeting in Durban made a declaration which was incorporated in the Protocol to the African Charter on Human and people’s rights a “Declaration on the Principles Governing Democratic Elections in Africa” and they said it is imperative to ensuring good governance through popular participation and further emphasized on the principles of democratic elections. They stressed that elections are the basis of the authority of any representative government and constitute a key element of the democratisation process.

The Heads of state were clear that democratic elections should be conducted freely and fairly, under democratic constitutions and in compliance with supportive legal instruments, under a system of separation of powers that ensures in particular, the independence of the judiciary, at regular intervals, as provided for in National Constitutions, by impartial, all-inclusive competent accountable electoral institutions staffed by well-trained personnel and equipped with adequate logistics.

These directives by summit heads of state are to ensure that elections must not just be free and fair, but must be seen to be free and fair. In the international arena, at practical administrative and oversight level, the institution of an independent electoral commission is now widely adopted as an important step in building traditions of independence and impartiality, and the confidence of the electorate and parties alike.

All the stakeholders in an election matter and the commission must try to bend backwards and address the concerns raised by all parties given that the Supreme Court ruling did not find favour with the commission. In a nutshell the election machinery can either be impartial, or in balance; if impartial members who enjoy the confidence of all parties cannot be found, then balance must be created by the appointment of party representatives where necessary.

Representation

In East Germany, election administration for the re-unification vote was handled by the 48-member National Election Commission, comprising two representatives from each of the 24 parties on the ballot; below it were district and local election commissions. The institution of an electoral commission was not new, but its commitment to free elections was. It rapidly established a reputation as fully independent and non-partisan, enjoyed ready access to the media, which it used in the interests of voter education, and supervised the reporting of both preliminary and final results.

It is important to always remember that across the world, there are many countries where elections take place but are rigged by governments or unfairly conducted. And even in core liberal democracies like the United States of America political parties have now become deeply involved in gerrymandering constituencies and partisan efforts at voter suppression, manipulation and hacking of electronic processes.

The Audit of the past United Kingdom elections found that the legislative framework ‘is complex, voluminous and fragmented’ and in need of consultation. Isolated cases of electoral fraud remain, vulnerabilities in electoral registration remain and the system for securing electoral justice is archaic and slow.

The chairman and the commission must ensure that election conduct and counting processes in the forth coming election should be transparent and subject to inspection by parties and candidates, and by external observers.

Election processes and results should be accepted by all domestic political forces as fully free and fair, and rated in the same way by foreign observers. Although there is very little time left, the chairman must rise up and do the right thing and doing the right thing means conducting free and fair elections. The commission must ensure the credibility of the process is not compromised.

Mr Mwamu is former President of East Africa Law Society and an Advocate of the High Court of Kenya