The underlying fears in election law changes

IEBC Chairman Wafula Chebukati during a press conference at the Bomas of Kenya after NASA representatives at repeat poll talks walked out on 28/9/17 [photo:Beverlyne Musili,Standard]

Fear of foul play, conspiracy, caution against courts and bid to cover actions already taken are the key underlying features of electoral law changes proposed by Jubilee administration and opposed by NASA.

An insightful look into the amendments and covert interviews with people involved in their preparation reveal an administration gravely seeking to insulate its anticipated victory from legal ambush.

The claim that the amendments are derived from Supreme Court decision notwithstanding, the first four out of the 11 items in the Bill concern themselves with Jubilee’s apprehensions on IEBC Chairman Wafula Chebukati.

Besides being the chair of the commission, Chebukati is also the National Returning Officer for the presidential election. Although he declared Uhuru Kenyatta the president-elect in the August 8 polls despite protests from NASA, Jubilee now seem to think he is bidding for NASA this time.

His famous memo to his CEO Ezra Chiloba subtly confirming massive irregularities ahead of the full Supreme Court ruling lend credence to these fears. In turn, Jubilee adopted Chiloba and fiercely defended him from NASA by vowing to kick out Chebukati in equal measure.

Special powers

“The IEBC Act, 2011 is amended in Section 2 by deleting the definition of the term ‘chairperson’ and substituting thereof the following definition: Chairperson means the chairperson of the commission appointed in accordance with Article 250(2) of the Constitution, the vice chairperson or such other person acting as chairperson,” the amendment reads.

In the original Bill, the chairperson meant only the appointed chairperson of the commission, not acting vice chair or an acting commissioner. Article 138(10) of the Constitution grants the “chairperson” of the IEBC special powers of declaring results. The same powers are granted by Section 39(1)(d) of the Election’s Act.

To further facilitate takeover of Chebukati’s roles in case he quits or is kicked out, the amendments are proposing to delete Section 6 (1) of the IEBC Act which required the chairperson to be “a person who is qualified to hold the office of judge of the Supreme Court under the Constitution.”

Out of the current crop of commissioners, only Chebukati fits the bill. Neither the vice chair Connie Maina -- whose academic papers were questioned at the time of appointment -- nor the other commissioners are trained lawyers of 15 years of practice or experience in related legal fields.

In the new subsection sought to be introduced, a person can be appointed IEBC chair if they have a degree in public administration, public finance, governance, electoral management, social sciences or law and with proven experience of not less than 15 years standing.

To cater for situations where Chebukati resigns in a huff and occasions a constitutional crisis, Jubilee is proposing that the vice chair -- qualifications aside -- will assume all duties of the chair. In absence of both the chair and the vice chair, the commissioners can elect one of their own to act as chair.

“These amendments on IEBC have no political angle to them. The chairman of IEBC is human and can fall sick too. And presidential election being a high stakes' process you must insulate it from crisis of this nature,” Senate Deputy Speaker Kithure Kindiki said.

The fears that Commissioner Roselyne Akombe could resign alongside Chebukati at a critical moment have inspired one more amendment lowering threshold for quorum. In the existing Act, quorum is “at least five members of the commission.”

In the amendments proposed, quorum is placed at “at least half of the existing members of the commission provided that the quorum shall not be less than three members.”

If Chebukati and Akombe were to quit ahead of the October 26 poll, IEBC would be left with five commissioners. The quorum for making decisions, including electing acting chair, would be three commissioners.

Quorum amendment

Again, Kindiki says the quorum amendment is meant to facilitate decision-making at the commission. With proper public participation and bipartisan approach, he says this provisions on quorum can be sharpened to vary depending on the weight of issues at hand.

“The proposals appear to address internal wrangles or partisan politics in the commission. We cannot micromanage an independent institution,” Senator Mutula Kilonzo said yesterday.

The other raft of amendments concerns the transmission of results. In the Bill, results shall be transmitted both electronically and manually, tallying and verification shall happen both at the constituency and national tallying centres and manual results shall prevail over electronic ones where there is discrepancy between the two. This is said to be informed by requirement by the Supreme Court decision that the chairperson must verify results presented to him before declaring the results.

Kilonzo says the section on transmission seeks to run away from the question of who interfered with the system in the first place and forced resort to manual: “We have deleted the whole system. Do we have time for new regulations, pass the law and put in place the new system, train people?”

The proposal on live-streaming of election results is somewhat vague and appears to contradict the Supreme Court views on the place of provisional results. In the decision, the court dismissed the view that the results streamed were mere statistics. In the rather bizarre move, the new proposals seek to scrap the “provisional results” language from electoral nomenclature while at the same time retaining the streaming of results but “for purposes of public information only and shall not be the basis for a declaration by the commission.”