Key issues that must be in place for Kenya to secure electoral justice in the 2017 polls
By Prof Ben Sihanya
| August 11th 2016
It is approximately a year to the 2017 General Election, and the country must embark on setting up appropriate mechanisms to ensure a just, peaceful and efficient electoral process.
My overarching argument is that there is need to reform key electoral and governance institutions before the 2017 elections. These include the electoral management body (IEBC), the Judiciary and security organs under the Executive.
There are at least four key issues that must be addressed urgently.
First, electoral mismanagement has been the result of lawlessness and impunity and the cause of violence since the election-related violence of October 1969, under the watch of founding President Jomo Kenyatta.
IEBC should be urgently reconstituted. The commissioners, the management, relevant secretariat and field staff must be competent and meritorious in terms of possession of appropriate skills, knowledge, attitudes, values and innovation (SKAVI).
They must also be diverse in terms of political affiliation, ethnicity and gender under Articles 1, 10, 132 and 232 of the Constitution. The process should be participatory.
Under a reconstituted IEBC, comprehensive voter registration is mandatory. There are concerns on the voter register in light of claims that it contains underage and dead persons. The outgoing IEBC and their associates in Jubilee cannot be allowed to benefit from a rigged register by simply citing the cost of new registration. Democracy is never cheap. And if they insist, then they should be surcharged for conspiracy and electoral violations.
The abuse of Biometric Voter Registration (BVR) and Electronic Voter Identification (EVID) systems in the electoral process should be addressed. In the 2013 polls, the failure of technology, mainly the malfunctioning of electronic equipment on election day, was caused by IEBC and their co-conspirators, then later were supported by the Supreme Court which simply took judicial notice that “technology fails”, instead of holding them accountable and delineating standards for future elections.
Technology was and is still meant to legitimise and facilitate Kenya’s elections. All technological resources should therefore be properly procured, tested and audited at least nine months before August 2017.
Second, key reforms are needed in the Judiciary. The courts are key to a just and peaceful registration, nomination, election and post-election disputes. The Supreme Court has exclusive jurisdiction on presidential election petitions. It will therefore have a big role in the 2017 presidential elections. It is imperative that it has the credibility to act with authority.
With such a heavy responsibility, its composition and the process of arriving at it is a major concern for all progressive Kenyans. The process of appointing a new Chief Justice, the Deputy Chief Justice and a Supreme Court judge is, so far, skewed in favour of candidates allied to the President Uhuru Kenyatta’s Jubilee coalition. Some key contenders have been more executive-minded than the executive, and have been favoured by the Moi, Kibaki and Kenyatta administrations. But should Jubilee insist on packing the Supreme Court with friendly judges, progressive Kenyans must invoke popular sovereignty and dispense with that court as an election arbiter.
Significantly, some of the concerns about the other courts, from the Court of Appeal to the lowest court in the land, is that there is need for preparation and training of judicial officers on how to handle election disputes. By the time of conducting the 2017 elections, Kenyans should have faith in the entire Judiciary. And this calls for diversity among the developers of training materials and trainers.
Third, general and electoral security reforms are urgent in Kenya. Security is a right under Article 29 in the Bill of Rights. The security governance framework under the Constitution was put in place partly because of persistent insecurity and partly due to the 2007-2008 post-election violence where the Commission of Inquiry on Post-Election Violence, commonly referred to as the Waki Report, found that police had committed human rights abuses against ODM supporters.
Sadly, the reforms anticipated under the Constitution of Kenya 2010 are being delayed, frustrated and sabotaged by the Kenyatta administration through unconstitutional legislation, executive and administrative action.
The police “service” remains a force in practice. For instance, police brutality during the recent anti-IEBC demonstrations shows security agencies can be used by the Government to intimidate the citizens even in the next elections.
Extra-judicial killings and enforced disappearances still continue, yet past ones remain unresolved. The National Intelligence Service (NIS), Kenya National Police Service and even the Kenya Defence Forces (KDF) have been deployed to spy and intimidate Opposition politicians, dissenters, voters, electoral officials, and observers generally.
This was also done at the Bomas tallying centre in 2013 and in the Malindi National Assembly by-elections in 2016.
The Independent Police Oversight Authority, as well as other constitutionally set oversight bodies have largely faced challenges in executing their mandates due to the coercive control by the Executive.
The civil society organisations have played a key role in providing some checks in the security policy formulation and implementation processes. Security management in the context of the 2017 elections is a serious factor that will require the input of all the political leaders and pro-reform agencies. Progressive individuals within the Law Society of Kenya and civil society organisations are key.
Fourth, the Kenyatta Government must take steps to address impunity associated with MIBSA or the manipulation, intimidation, bribery, stealing of votes at the stage of counting, polling and even scrutinising, as well as threatened or actual arson, assault and assassination. This has led to the current dangerous polarisation between supporters of the incumbent and those of the Opposition leaders.
The MIBSA factor can be contained if the first, second and third issues raised are addressed. With a credible IEBC and Judiciary, and guaranteed security for all citizens, Kenya can have constitutionally free, fair, accurate, verifiable, transparent, accountable and peaceful elections in 2017.
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