Nothing exhibits the casual way in which we treat critical national issues like the way filling of vacancies at the Independent, Electoral and Boundaries Commission has been handled.
In our constitutional design, the IEBC and more particularly its chair, is the premier state institution handling some of the most delicate and “crisis fomenting” components of our governance framework.
Consequently, this institution cannot be permitted to exist in a constitutional limbo. As far back as I can recall, there have been demands for amendment of the law to ensure the process of appointment of a new IEBC chairman and commissioners, commences before the term of the subsisting team expires. This makes prudent sense.
The appointment process of such key office holders requires both technical and political management. Technically there are myriad steps to be undergone.
Politically, while it is possible for the dominant political players to bully their way and get their preference appointed, wisdom and good counsel demands a more bipartisan process, where at the minimum, the person appointed, especially as chair, is not seen as beholden to any of the political formations. The amount of time required for the back-room negotiations on such an issue is quite extensive. It should ideally not be done when a crisis, as we have now.
To be fair, the midterm appointment of the ‘Cherera Four’ had been seen as a progressive development since, going forward, the terms of the commissioners would be staggered. But any insightful watcher of our politics would have known the appointment of these four by one side of the political divide could generate complications especially in such hotly contested elections.
Had the Raila Odinga team won, the crisis would not have been as bad since the ‘Cherera Four’ would have continued in office, thus allowing time to appoint the replacements of the ‘Chebukati Three’.
But it was clear for a long while that the 2022 election was going to be close, which meant it could go either way. Consequently, prudence would have dictated that arrangements for filling of the ‘Chebukati Three’ positions commence early.
Where we are today is that we do not have an electoral commission. The courts have already determined that the commission is incomplete without commissioners. God forbid that we had a crisis that demanded the commission to arrange elections. Where would the country go?
To its credit, Parliament has finally passed the revised law on the process of appointing new commissioners. Like all issues Kenyan, most people looked at these amendments through political lenses and assumed that Kenya Kwanza was using its political dominance in Parliament to pass a law to its advantage. But a reading of the law shows clearly that what has been reduced is the overwhelming role of parliamentarians in the selection process.
Critical independent institutions including the Law Society of Kenya, the Inter-religious Council and the Political Parties Liaison Committee remain key players in the selection process. I am not sure who manufactured the theory that the appointment panel had been “skewed in favour of Kenya Kwanza”.
That having been sorted, the establishment of the panel is urgent. It must commence and conclude the process of advertising, interviewing and nominating the replacement commissioners urgently.
I however believe the appointment process should be staggered so that half of the team is appointed now and the balance later so that the transitioning process is improved. Of course, we still have the challenge of most credible and fitting Kenyans shying away from these offices, especially that of chair, which is seen as the ultimate graveyard in public affairs.
But Mr Wafula Chebukati, for all his faults, has shown that it is possible to do a fairly good job which, while predictably contested by one political side, is still objectively one of the better performances of an electoral commission since multipartyism; a position confirmed by the small number of petitions challenging the 2022 elections.
To those who will be given the onerous task of getting us a new Chebukati and team, you owe Kenya a duty of care to get a person not just appropriate but is seen to be manifestly appropriate.
The writer is an advocate