Kaluma’s IEBC appointment proposal: IPPG and the Historical Reality

As recently reported by The Standard, Homa Bay MP Peter Kaluma has proposed that a new IEBC be established, its key element being the mechanism for selecting commissioners.

He argues for using the 1997 ‘IPPG’ model, in which members are nominated by the main opposing political parties (along with another member – a lawyer – selected by the LSK), so as to create a ‘balance’ within the electoral body, thereby guaranteeing accountability from within, and thus minimise, if not eliminate, ‘rigging’ along with other forms of electoral malpractice.

His main justification for this proposal is that it is largely based on the model that “there were no serious problems with either the 1997 or the 2002 elections”. However useful this sounds in the abstract, it contradicts the historical facts to a significant extent, especially with regard to the 1997 election (though aspects of the latter election are also worthy of serious scrutiny).

First, the IPPG deal saw the previous body (ECK) reconstituted with appointments shared between the then ruling party (KANU) and the Opposition, with its several political parties allocated slots according to their numerical strength in Parliament.

What is obvious here is the problem of how ‘fair’ such allocation is, given the fluidity in the strength of parties – let alone their very de facto existence – from one election to the next.

Political history

But Mr Kaluma fails to note that after this reform deal was agreed upon and implemented, the NGO-led National Convention Executive Council (NCEC), headed by Dr Willy Mutunga, Prof Kivutha Kibwana and Maina Kiai rejected it as not having gone nearly far enough with regard to either its content or legislative codification.

But leaving those aspects of the deal itself aside, what can be said about the quality of the 1997 election, which Kaluma extols? In this regard, recall what Kenyan political history/election expert Charles Hornsby had to say (in his Election Day and the Results, published in the most authoritative account of that election: ‘Out for the Count’).

“There were 13 closely fought parliamentary constituencies where the number of parliamentary ballots were either far too many or too few compared to the presidential ballots, and/or the number of missing, lost, disallowed or miscounted ballots were greater than the majority of the winning candidate. These are strong indicators of a high-risk situation… The result was so close that the pro-KANU malpractice that occurred, almost changed the result from a minority to a majority government.”

Hornsby thus concludes: “The 1997 elections were far freer than those in 1992…Nonetheless, KANU still cheated, bribed, intimidated and finally rigged its way into an overall majority of the House by manipulation of a few key results.” Also relevant here is Hornsby’s reminder that although 26 petitions were brought against KANU parliamentary ‘winners’ in that election, none were successful. Serious irregularities were documented in another five constituencies, all included in the report to the ECK.

Future elections

Whatever the details, and even without taking into account the evidenced contained in Mwaki Kibaki’s presidential election petition – since it was dismissed because Kibaki’s lawyers had failed to serve it ‘personally’ on President Moi.

It is evident that the 1997 election was no model of the sort of ‘free and fair’ event that Kaluma expects his proposed IEBC reform will guarantee. But if such skepticism is warranted, what would really be required to ensure that future elections are managed in a way that respects “the will of the voters”?

While many complex factors are certainly involved, a key distinction should be made between the method of selecting commissioners and their day-to-day independence once in office.

That is, there is a world of difference between independence that is formal/de jure informal, and that which is de facto. And this distinction is relevant to many other institutions as well, as we have seen. As such, the obvious question is: What must be done so that such institutional independence can actually be realised?

Of course, this is not to deny either Kaluma or anyone else the right to attempt to engineer improvements in the country’s institutional structure, whether or not such improvements require constitutional amendments. But in deciding to embark on such efforts, it seems that more attention should be paid to the actual historical record.

In this case, Kaluma is advised to take a deeper look at what happened in those two post-IPPG elections, identify the short-comings, and then try to figure out why they took place, even with the commissioner-selection process in place that he supports. After all, there’s no point in trying to re-invent the wheel, especially when that wheel’s performance was rather less than perfect in the first place.

Dr. Wolf, is a Research Analyst for Ipsos-Kenya