What we must do to tackle systemic failure at the IEBC

In a period of much despair and dismal future prospects for the biblical Israelite nation, Prophet Ezekiel was shown a vision of the valley of dry bones; a vision that had portentous impact on its future direction. This account, recorded in Ezekiel 37: 1-28, tells us that the Prophet was carried in the spirit and set down in the midst of a valley full of dry bones, symbolic of the nation’s state: disenfranchised, exiled and hopeless.

A critical question that Yahweh asks him is: ‘Son of man, can these bones live?’ Just as this question was relevant for the Israelite nation at a time of great desperation, so it is for Kenya at this time of electoral crisis. By analogy, one may ask whether the bare bones of the systemic failure of the Independent Electoral and Boundaries Commission (IEBC) can yet lay the basis for reform, restoration and reinforcement of electoral justice in Kenya.

At least three reasons lead me to answer this question in the affirmative. First, Kenyans are now seeing just how insecure the foundation of a constitutional democracy can at times be: without an effective electoral management body, the entire premise and attendant promise of democracy can be compromised. The expected result of this is a call for appropriate electoral reform. Secondly, in the wake of the legal-political contention surrounding the 2017 electoral drama and the recent conciliatory gestures of the main protagonists, there is now scope for bi-partisan reconsideration of contentious issues. As opposed to the confrontation that characterised past engagements, we will now see mutually supporting efforts to repair and restore confidence in the electoral system.

Thirdly, the subject of free and fair elections provides an opportunity to reflect on divisive issues that have long troubled Kenyans and to chart a constructive path forward. Such reflection in the context of an emerging political concord can offer the impetus for reinforcing democratic rights. Taken together, it is inevitable that we are bearing witness to the beginning of a reformist turn in Kenya’s electoral discourse.

Before moving to expound on the future of Kenya’s electoral process, let us briefly return to the sad and silent valley of dry bones to glean some insights from that distant past that are relevant to our present. Two points, one instructive and the other prescriptive, can be drawn from the scenes described in Ezekiel 37: 1-28. First, the macabre imagery in the vision is instructive as it forces us to confront failure head-on and to maintain optimism in the depths of despair. Its implication for Kenya’s electoral process is that dispiriting as the recent revelations of administrative crisis with IEBC may be, it is possible to turn around the failure into an important lesson and basis for rectification. Secondly, it prescribes that hard questions and strategic outside-the-box solutions are the appropriate methodology of broaching the subject of the way forward along the path to sustainable electoral reform.

Way forward

What are the next key steps that Kenya must take to ensure the reform process will secure meaningful results and be protected against arbitrary change? This pithy question can be answered in multiple ways and may yield varying, even competing, answers. However, I propose to adopt a constructive approach to describe the broad outline of a strategic framework for electoral reform in Kenya. This framework is built on four limbs: (i) appropriate institutional design; (ii) inclusive participation of stakeholders; (iii) a complementary expert-led process; and (iv) an accountability-driven oversight mechanism.

The first limb is premised on the organisation theoretical model which holds that institutional arrangements are effective if they meet their objects, and further that the institutional design is a key determinant of success. It thus follows that if the Kenyan electoral reform process is to be successful, it must deliberately be engineered for that outcome.

Careful choices must therefore be made regarding what is the most efficient, equitable and sustainable structure for driving the electoral law review. Related to the issue of institutional design is the question of participation: it must be ensured that the process is inclusive to the greatest extent possible. This will result in a legitimate multi-stakeholder process, which should be complemented by an expert-led process and supervised by an accountability-driven mechanism.

However, things are somewhat complicated by some recent legal developments. In particular, a recent High Court judgment has held that certain functions of the Chairman of the IEBC are exclusive to him/her and cannot be delegated. This judgment creates a problematic lacuna in the law because, among other things, it becomes unclear what should happen if the IEBC Chairman dies or is incapacitated, and the process of replacing him is frustrated. This and other issues need to be systematically tackled in the context of devising a strategy for comprehensive reform.

-The writer is an advocate of the High Court of Kenya. [email protected]