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The Kriegler lessons for 2017 presidential re-election contest

By GAKUU MATHENGE | March 20th 2016
Former Constitutional Court and Appeal Court judge from South Africa Johann Kriegler, flanked by chairperson of the Independent Electoral and Boundaries Commission (IEBC) Isaack Hassan during the commission's stakeholders meeting in Nairobi on Kenya's 2013 post elections analysis. PHOTO BY DAVID NJAAGA

The 2017 General Election is reminiscent of the 2007 contest, with a sitting president seeking re-election.

Then, as now, the Opposition loudly questioned the partiality of the election management body, the Electoral Commission of Kenya (ECK).

In 2007, then Orange Democratic Movement (ODM) and current Coalition for Reforms and Democracy (CORD) leader Raila Odinga was challenging the re-election of retired President Mwai Kibaki.

On Tuesday, Raila raised the stakes when he called on the Independent, Electoral and  Boundaries Commission (IEBC) to address integrity questions being raised over the Kericho by-election “and stop mocking Kanu for raising them”.

Kanu has questioned the way IEBC conducted the March 7 by-election.

Raila is highly expected to be the strongest challenger of President Uhuru’s re-election next year.

ECK, the predecessor of the IEBC, was blamed for bungling the job and plunging the country into violence.

In 2008, South African Judge Johann Kriegler delivered a stinging indictment on ECK and recommended its disbandment “to restore integrity of Kenya’s electoral system”.

Kriegler chaired the Independent Review Commission (IREC) to investigate the conduct of the 2007 general election.

IREC reported that Kenya’s electoral system was “so materially defective for any one to establish the true result of both presidential and parliamentary election”. The commission could not establish who won the presidential vote between retired President Kibaki and Raila.

“The 2007 election was so impaired and results so irretrievably polluted. No body will ever be able to say who won or lost the election...,” Kriegler said.

Violence blamed on the disputed results left more than 1,300 people dead and more than 600,000 others displaced.

The unrelenting negative rhetoric against ECK’s successor, IEBC, with repeated calls for reorganisation of the current team, has escalated anxiety over the commission’s capabilities.

But the Committee for Implementation of the Constitution Oversight Committee (CIOC), one of the key institutions charged to ensure implementation of constitutional provisions for credible elections, cautions against changing the IEBC composition 15 months to the next general election.

Sticky concerns

“Kenya is in the middle of massive and disruptive institutional reforms. We should resist the temptations to disband or reogarnise new institutions too soon over perceived shortcomings in the process of charting their course,” said CIOC chairman Njoroge Baiya.

IEBC’s first job in managing the 2013 General Election ended up at the Supreme Court for arbitration. CORD has since then demanded the reorganisation of the IEBC.

Besides the Opposition coalition, former ruling party Kanu, a Jubilee affiliate, has joined the fray to question IEBC’s conduct of the Kericho by-election, loudly escalating the question the commission’s capability.

“The confidence of Kenyans in their institutions overrides any other consideration. Confidence in IEBC must be addressed before 2017,” said Kanu Secretary General Nick Salat.

Some of the sticky concerns raised include what constituted the principle voters register and methods of transmission of election results from the polling station.

With the spectacular collapse of the results transmission system in 2013, and corruption reports involving senior officials, debate has ranged around legal and political processes to address confidence concerns ahead of 2017.

“At this stage in the electoral calendar, only a political intervention involving both President Uhuru and Raila can restore confidence in the election management mechanism. Both command the biggest chunk of the political establishment affected by IEBC decisions,” said Tony Gachoka.

Mr Gachoka recently took a rare step and wrote an open letter to President Uhuru and Raila, urging for political resolution of the uncertainties around what constituted the voters’ register and the method for transmission of results from the polling station. Former Justice and Constitutional Affairs Assistant Minister Danson Mungatana told The Standard on Sunday the way out to instill restore confidence in the IEBC must involve both the opposition and the government sides.

Restoring confidence

“Both sides of the government and the opposition have voiced concerns over the current IEBC team. Both sides of the political divide must have confidence in the referee of the contest,” said Mungatana.

But Issack Hassan, the IEBC chair, said his commission is ready and well prepared for next year’s elections.

Mr Hassan said IEBC will also publish the entire voter register on its website and share copies with every political party for inspection and verification.

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