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Judiciary, IEBC decision on elections date betrayed their reforms mandate

By | March 25th 2012

By Ndung’u Wainaina

The clamour for new dispensation was informed by need to do things differently. Key among these was poor management of elections that the Executive often abused. In the electoral cycle there has been a desire by the incumbent and his team to deliberately manipulate the electoral process.

Unfortunately, such manipulations have concurrent negative effect of defeating core foundations of democracy that is built on fairness and popular will and participation. The Kanu regimes of Kenyatta and Moi were undoubtedly notorious for this with open abuse of the Provincial Administration to intimidate opponents and coerce the public.

Conversely, the Kibaki Administration initially seemed to depart from these tactics but that was before it became conflicted. From the bungled 2007 General Election to the current issue of elections date, what seems to motivate this regime in relation to management of elections has very little to do with public interests and respect for popular opinion. It’s certainly devoid of a desire for inculcation of a democratic culture in Kenya.

In his New Year address, President Kibaki was categorical on delivering elections this year and promised to shepherd smooth transition. This statement must have been informed by sound advice based on appreciation of strict provisions of the Constitution.

Importantly, the President must have understood our electoral calendar and observed public mood that is eager to write a new page in Kenya’s governance. Essentially, 2012 marked the hallmark of transition to the next phase of democratisation. But in transitional phase nationalism counts more than anything else.

And, if properly seized, then those privileged to be in power at such momentous times in a country’s history become national heroes of their time. Winston Churchill’s national stewardship of UK during Second World War and Mikhail Gorbachev’s role in ending the cold war and transiting then Soviet Union to market economy have preserved their place in history.

Closer home, Mandela’s management of South Africa’s transition from apartheid to the pearl of Africa that it is today is there for everyone to see. What then is so different in Kenya that our leadership and institutions do not seem to learn from history?

Frankly, it’s not really a coincident that the precise date of next elections is ‘unclear’ in the Constitution. Strictly speaking, not everything can be codified in the Constitution. But its spirit can be lived by all, which then gives the country predictability that is actually vital for economic development.

Framers of our Constitution thus envisioned a leadership that lives the spirit at least during the transition, and not guided by self interests and collective desire to frustrate public will. They also envisioned important institutions, including the IEBC and Judiciary that are independent but guided by contextualised understanding of the dynamics of our country in discharging their mandate.

Now, no extraordinary expertise is required to understand this elections date quagmire. Elections should be held not earlier than 60 days and not later than 30 days of the date of expiry of the president’s term. This is for crisis avoidance in the near future on governance and fiscal matters as well as subsequent elections as set out in the Constitution.

Simple and honest reading of Articles 101 and 136 of the Constitution on legislative and presidential elections respectively concludes that subsequent elections to the 2012, will be held on second Tuesday of August after every five years. No prizes for guessing why the country settled this date! As for the first elections under the new Constitution, proper answer can only be found when you analyse the sixth schedule.

Again, any sincere analysis of Articles 9 and 10 of the sixth schedule will conclude that elections be held within 60 days of dissolution of Parliament or the National Accord, whichever is earlier. However, with the powers to dissolve Parliament arguably removed with the effect that its term automatically expires then the issue becomes; when does the current term expire? Again this question deserves sincerity within our political leadership in upholding national practise.

With public admission amongst their ranks that MPs were actually paid full salaries and claims for January 2008 when the country was in turmoil, it can only be naive to claim that their terms only commenced on January 15, 2008. Why then did they not take half salary? It defies basics of contracts that leaders, as public servants, have with the people. To a degree, it’s also reflective of continued national stigma that makes a section of political leaders consider themselves indispensable.

That aside, Article 9 (2) of Sixth Schedule is even precise as to the inevitability of elections in 2012 by providing that ‘...if coalition established under the National Accord is dissolved and General Elections are held before 2012, elections for the first county assemblies and governors shall be held during 2012’. From this provision alone, it’s self-serving to construe elections to be held anywhere beyond 2012.

And that is why it’s unfortunate how the IEBC and Judiciary have casually handled the elections date. Much as they are independent institutions, it is useful to borrow lessons from jurisdictions that have demonstrated real independence. Further, it’s crucial to understand that to the public, the hallmark of their independence shows through practises and decisions that capture the context of the country, its expectations and culture. Above all, the decisions must offer transformative solutions not form basis for confusion.

Where necessary, they must also be scientifically coherent. Thus in deciding to give confusing options on elections date, particularly referring it to principals it much never read from the same page, the High Court failed to infuse predictability in our reforms. The Court of Appeal is doing no better in taking longer to dispense with the pending appeal. And yes, by faltering on elections date by disregarding pending appeal and clearly appearing subservient to the Principals, the IEBC betrayed the electoral reforms momentum.

The writer is Executive Director, international Centre for Policy & Conflict

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