We’re running out options to resolve IEBC stalemate

Prof Githu Muigai must be one popular Attorney General with all politicians this week! The good professor dared to utter and support the dreaded “E” word that most politicians dream of but cannot dare voice for fear of public recriminations from a citizenry wary of term extensions. While I do not agree with my former teacher, I completely understand where he is coming from. As the excitement on removing the Independent Electoral and Boundaries Commission (IEBC) commissioners has gained momentum, many have not applied their minds to some terrifying implications of all these matters on elections 2017.

For the 2013 elections, the IEBC was established about 15 months before the elections. Recognising that this was very close to the elections, the Chair Isaak Hassan and commissioners Yusuf Nzibo and Engineer Abdullahi Sharawe being members of the two predecessor interim commissions on elections and boundaries review were retained in the IEBC to facilitate seamless transition and institutional memory. Yet it is on record the commission still struggled with preparedness. We are now 12 months before the next election.

We have a non-functional IEBC courtesy of the feverish political atmosphere. We have also agreed politically that all the IEBC commissioners must go home. Indeed for many of us nothing short of a public lynching would satisfy. The earlier we come to terms with the reality that the former is unfortunate and the latter a luxury we cannot afford the better.

Even in the best-case scenario, an Article 251 removal would take us to December. During this period, when the commissioners may stand suspended, the commission would be at a standstill unable to conduct any serious business, courtesy of the Ethics and Anti-Corruption Commission (EACC) decision, which confirmed that a Chapter 15 Commission is only able to carry out its functions if it has in place commissioners. We also could not appoint new commissioners.

Even if they were not suspended, they would hardly engage in any significant business during the tribunal hearings. To be honest, even a “voluntary” resignation of the entire team, and a quick appointment of fresh faces, would still end in October at the earliest and would require the commission to work overtime to achieve a flawless election. This partly informs Prof Githu’s extension proposal. An extension would also assuage politicians who feel short changed for not serving a full five years and also resolve the latent contradiction that seems to allocate MCAs a term of five years unlike everyone else.

My worry about an extension arises at two levels. In the first instance, it would lead to public dejection for nothing is more detested by the general populace than extended terms. It would also send a worrying message to the population that the Constitution is amenable to political tinkering when it suits the political establishment. We have known about the challenges of IEBC for five years. Why, the public would wonder, has it taken us so long to resolve the issue thereby forcing a last minute crisis that leaves us with the devil’s alternative? What is to stop politicians using similar arguments to ensure extensions every election season?

At another level, I believe that in view of Article 251(f), any extension of the date of the next election would require a referendum because it would relate to the term of the President. When President Uhuru was elected in March 2013, the date set for election, signaling the most critical event leading to the end of his term was August 8, 2017. An extension of that date definitely relates to the President’s term. Under Article 251 such an amendment requires a referendum.

While I have no doubt such a referendum, if supported by the entire political establishment might pass, I wonder whether that is the sort of agenda that we should spend our scarce financial resources on, not to talk of the disruption to the social and economic environment that a referendum would cause. Consequently this is not an option that should be contemplated.

As the politicians haggle on the next steps, this extension option should be off the table. The current process must be cleared quickly and new faces be brought on board so that we can have a new government in August of 2017. Anything else would be a betrayal of the people of Kenya.