Juggling one reform ball too many

By Njoki Ndung’u

The Ministry of Justice and Constitutional Affairs, the Interim Independent Boundaries Review Commission (IIBRC), and the Interim Independent Electoral Commission (IIEC) held a conference on setting the electoral reform agenda this week.

It was a programme packed with national and international expertise on electoral processes. The proceedings that were attended by the two principals at the centre of the 2007 disputed election were interesting, thought provoking and immensely challenging.

The President and the Prime Minister, while admitting a flawed General Election, attributed the same to varying causative factors. Both were, however, united in pitching for avoidance of situations that could fuel a post-election turmoil like the one witnessed last year.

Setting the pace on laying the foundation for a genuine democracy in Kenya was Dr PLO Lumumba. But beneath the wisecracks were poignant conclusions as to why Kenyan elections have never been democratic.

First, he pointed out that elections in a democracy must be about genuine representation of the different sectors and not about clannism and ethnic blocs.

The constitutional lawyer pointed out that our current electoral system, which is first-past-the-post in geographical boundaries is in itself a catalyst for potentially explosive electoral disputes. It increases the likelihood of competing ethnic and clan loyalties of the kind that provided the ammunition for last year’s tribal-minded mayhem disguised as protest over flawed elections.

I am inclined to agree with him as ownership of a process is about equality of citizenship and indeed the equality of the vote.

Ethnic mobilisation of the vote excludes most groups that do not fit into a patriarchal arrangement.

I further believe the electoral system a nation chooses determines most of the institutional arrangements in a constitution. It is an electoral system that advises the system of government, the structure of the Executive, Legislature and even devolution of power. It will bequeath a solid electoral process. If I can steal the words out of Mr Ahmed Isaack Hassan, the IIEC chairman, it is a system that ensures free and fair elections, fair representation of minorities and marginalised groups and nurtures a multi-ethnic harmonised community and creates strong political parties.

On the last point, we need to reflect on our current reality and our weak political parties. As Lumumba points out, "political parties are irritating and annoying at once."

How true especially if their sole existence is based on a once in five years event; a vessel for politicians to get to Parliament and abandon without a backward look? This also goes for the ignorance of the ordinary voter on the enormity of his or her vote. Indeed, I agree with those words of wisdom that caution that "he who does not know why he votes is a dangerous person!"

Finally and more profoundly, Lumumba and Hassan stated that they are convinced there will be no new constitution any time soon and that Kenyans should start preparing for a minimum reform package similar to the Inter-Parties Parliamentary Group of 1997 or the proposed minimum package of 2007.

Uncomfortable conclusions

This conviction not only lies in their experience having both served in the former Constitution of Kenya Review Commission but also in appreciation of the current political dynamics.

The latter invites some uncomfortable but tempting conclusions. One, the ever-changing political developments may prevent the necessary political consensus required for comprehensive constitutional reform. Two, that the roadmap established by Parliament has not been well thought out and therefore is bound to fail.

Let me try to explain the last point. Parliament, in its wisdom and intent on implementing Agenda 4, creates two new constitutional bodies: The IIBRC to make proposals on administrative boundaries and the IIEC to make proposals on electoral reform. Both institutions have 24 months, from December last year, within which to complete their work. A third institution, the Committee of Experts on Constitutional Review (CoE), was given 12 months ending March next year to make proposals for a new constitution.

By its very nature, a draft new constitution should include at least the key principles of the proposals to be made by both the IIEC and the IIBRC.

It is also expected to prepare for a referendum, which will require a complete new register of voters for the IIEC. These timelines and corresponding duties are complicated by the fact that the census to be undertaken later this month will inform the work of the IIBRC.

Statistics from the headcount will likely influence proposals for administrative boundaries, which will, by extension, impact on the proposals for devolution, which will have been made by the CoE. Considering certified census results can realistically be expected by the beginning of next year, it means the inter-dependency of the three Agenda 4 teams will inevitably delay the timelines as set. As a member of the CoE, the sobering thought for me is not whether or not Lumumba’s damning conclusion is true. Rather, it is in the obvious realisation something must be done to streamline the calendars of these three teams. Their activities require to be sequenced into realistic timeframes if the roadmap to comprehensive review of the constitution is to be achieved.

We must reorganise them if we want to ensure a valid and proper outcome towards a single new constitution. Short of this, we may have no option but to take the suggested path of minimum reforms, if only to prevent us going to another election under the very same problematic constitutional framework that we did in 2007.

—The writer ([email protected]) is an advocate of the High Court of Kenya