Barriers to reforming IEBC are political, not legal

Constitutions are incomplete contracts. What do I mean by this? Constitutions are basic laws that provide a legal framework for the management of a given entity. Good constitutions reflect the actual distribution of power in society. In other words, they merely codify what society accepts as legitimate distribution of power and responsibilities in public affairs. Enduring constitutions are also flexible. The only constant in life is change. Power distributions or values change over time. For constitutions to endure they should be flexible with regard to secular changes. This is why constitutions are not meant to detail specific statutory requirements. They provide general frameworks. And it is because of this that they are inherently incomplete contracts.

Two key reasons lead to incompleteness of constitutions qua contracts. First, no one is inter-temporally omniscient. We do not know what tomorrow might bring. And so we cannot account for every possible eventuality in future. Therefore, we must accept that there is a reasonable chance that we may need to amend the Constitution in future to make it match contemporary realities. Second, we need flexible constitutions. Even if we knew exactly what the future held, we would still want to allow ourselves room to maneuver in the actual implementation of constitutions.

For these reasons it is important to note that actual implementation of constitutions is always political. On the one hand, the enactment of enabling legislation to actualise specific requirements of constitutions typically involves political horse-trading in legislatures. On the other hand, the conduct of everyday politics often involves maneuvers aimed at testing the limits of the constitutionality of specific acts. For these two key reasons, political negotiations and deal making often mark the actualisation of constitutions. This is what makes constitutions the living documents that they are.

The above observations should inform how we approach the matter of reforming the Independent Electoral and Boundaries Commission (IEBC) ahead of next year’s polls. Obvious, there is a segment of the political class that feels it stands to benefit by maintaining the status quo.

It is also true that a significant proportion of Kenyans have lost trust in IEBC on account of serious governance challenges emerging from the 2013 election. These are real issues that cannot be ignored. They are also fountains of political contestation.

This means it matters little what the actual letter of the Constitution is on the matter of how to remove IEBC commissioners from office. The reality is that what the Constitution says is at variance with what majority of Kenyans want. Simply put, the remainder of IEBC commissioners implicated in ChickenGate goes against the spirit of the Constitution. As a result, their removal is no longer a normal constitutional hurdle. It is political. Which is why I believe it is up to the political process to break the impasse. Unfortunately, so far our political class has proven singularly inept at handling the looming constitutional-cum-political crisis. Do we really want to go into a closely contested election with a tainted commission?

Lastly, as the political fight over the commissioners continues, we must ensure the actual IEBC secretariat continues to prepare for the elections next August. Let us not be caught flat-footed come next August. We know what is coming.

We know the logistical requirement of a General Election. We know the mistakes from the 2013 election. Let the secretariat do its job in good faith, even as politicians battle over representation among the commissioners. We can never hope of having a vibrant and stable democracy if we do not intentionally build and maintain a trusted electoral management body. There is no way around this fact.