There are ten constitutional commissions and two independent offices under article 248 of the Constitution.
Yet, the independence, impartiality, and non-partisanship of the Independent, Electoral and Boundaries Commission (IEBC) occupy the public psyche more than any other.
Under article 249, the objects of commissions and independent offices are to protect the sovereignty of the people; secure observance by all State organs of democratic values and principles; and promote constitutionalism and that they are independent and subject only to the Constitution and law, and not subject to direction or control by any person or authority.
The mandate of IEBC obligates it to be an independent, impartial and non-partisan referee. Impartiality means fairness, equal treatment of all contestants/competitors or disputants.
Non-partisan means free from bias, party affiliation or designation. Independent means free from outside control, compromise, and not dependent on another’s authority.
IEBC like all other commissions enjoys financial, human resource and institutional independence. This means it is funded by the exchequer/consolidated fund, it employs its staff and it has adequate legal and structural frameworks to function independently and in an impartial and non-partisan manner.
The Secretariat is perceived to be doing a good job. The problem is at the Commission and Chief Executive Officer (CEO) levels.
Impartiality, non-partisanship, and independence must be perceived and seen to be done. It is difficult for many to see IEBC as treating contestants/participants in elections equally and fairly and it is often accused of being biased or compromised.
After every election, IEBC’s independence, impartiality and non-partisanship are questioned with contestants, supporters and interested parties divided either for or against IEBC. While in some cases courts agree with the outcome of the elections, in some cases, courts have found IEBC partisan and partial and even reprimanded it.
There are many reasons why IEBC is perceived this way. In the past, IEBC has clearly demonstrated that the commissioners are divided; with the CEO aligning himself with one faction and even being reprimanded by the courts for taking sides.
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The relationship between the chairperson and a previous CEO went sour sending the message of either or both of them are biased for or against one political faction. There appears to be suspicion and mistrust in IEBC.
Perhaps, the main reason for the perceived lack of independence, bias, and partisanship in the IEBC can be attributed to the manner in which the chair and commissioners are appointed and conduct themselves thereafter.
The IEBC selection panel comprises representatives of political parties and interested groups. It is perceived that each of these is aligned with a political side and is biased or susceptible to being compromised.
Perhaps, this may be attributable to the fact that the final shortlist submitted for appointments does not always consist of people perceived to be as being highly qualified, non-partisan, independent, impartial, and incapable of being compromised.
This may explain why politicians are always changing IEBC/electoral laws after every election or calling for its dissolution/disbandment. If IEBC commissioners were fiercely independent, completely impartial, and non-partisan, all parties and contestants would respect them, irrespective of the poll outcome.
Is the IEBC perceived to protect the sovereignty of the people; secure the observance by all State organs of democratic values and principles; and promote constitutionalism?
Do Kenyans and political contestants perceive IEBC as independent and subject only to the Constitution and law, and not subject to direction or control by any person or authority?
If the answer to any part of this question is no, then we need to seriously re-evaluate the appointment of commissioners, its operations, and accountability.
Politicians and partisan groups should play no part in the appointment of IEBC commissioners. It is time to reconstitute the IEBC selection panel. The business of elections requires high levels of professional integrity, probity, independence, impartiality and non-partisanship.
These, it appears, cannot be guaranteed if politicians are involved in selecting IEBC commissioners.
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