While players in next year’s polls are upbeat and warming up or merging their teams, the status of the big match’s referee remains in a quandary, thanks to a clogged calendar and uncertainty over the activities on card.
The major concern among players is that the referee – the Independent Electoral and Boundaries Commission (IEBC) – is racing against time. By this time next year, for instance, presidential aspirants would have presented their nomination papers to the electoral body and started official campaigns.
This means political parties should have held internal elections or mergers to identify their party or coalition presidential flag bearers, which explains why President Uhuru Kenyatta’s Jubilee party and Raila Odinga’s ODM party have started merger talks and Deputy President William Ruto formally announced his association with the United Democratic Alliance (UDA) last Saturday in West Pokot County.
But the IEBC seems to peer into an unknown future, thanks to the legal hurdles occasioned by challenges to the Building Bridges Initiative (BBI) and the requirement for aspirants for all electoral positions to possess at least a bachelor’s degree from a recognised academic institution.
“These are just among the few cases in courts that are red flags for potential poll delays and confusion in the overall execution of our duty,” confided an officer at the polls body, who declined to be named because he had not been authorised to speak to media.
Our three-day-long efforts to get a comment from the IEBC chairman Wafula Chebukati proved unfruitful as his phone went unanswered. The boss of the electoral body never responded to our text messages either.
Amani National Congress (ANC) leader Musalia Mudavadi fears the situation could get even more complicated for the electoral body if the courts were to give BBI a lifeline. According to Musalia, the BBI Constitutional Amendment proposes to fundamentally alter the election timelines. In light of the proposed additional 70 constituencies, the former vice president observed that it will be difficult to conduct a referendum and implement it within the remaining time.
And Makueni Senator Mutula Kilonzo Jnr regrets that the time element could make an already bad situation worse: “The real problem now is time, which is not on our side. We are playing Russian roulette with an extremely divisive exercise.”
Nairobi-based lawyer Harun Ndubi says that IEBC “is obviously not ready” for the elections of 2022 and a referendum: “With the ravaging Covid-19 and a struggling economy, I do not see IEBC having the capacity to run both. There is also a great need to conduct civic education on BBI, yet I have not seen a copy of the authentic BBI Bill that was taken to county assemblies to date.”
Ndubi says IEBC has been operating under its capacity following resignation of four of its commissioners, leading to “under performance”. It was not until April 14 this year that President Kenyatta kicked off an exercise to fully reconstitute the electoral body through a gazette notice.
A seven-member selection panel headed by Dr Elizabeth Muli is already in place
“The process of recruiting IEBC new commissioners is a great relief considering that the electoral body had been crippled in its operations after the exit of four commissioners and lacked an adequate budget to finance its activities, particularly civic education, continuous voter registration and delimitation of electoral boundaries,” says Musalia.
Challenges notwithstanding, Musalia says the ANC party will adhere to the timelines stipulated in the Elections Act and the enabling IEBC regulations around party primaries and party lists.
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“We shall continue to engage IEBC to ensure sanctity of the vote and secure electoral justice. We are currently preparing candidates for various elective seats, including the presidency, where I have been declared the flag bearer,” Musalia told The Sunday Standard, asking Kenyans “to interrogate all other candidates and their policies”.
Besides the nomination of presidential candidates, IEBC’s 2022 electoral calendar anticipates that aspirants for various seats will have concluded their campaign fundraising in 79 days’ time – that is September 9, while public servants aspiring for political seats should have vacated office by February 9, 2022.
The biggest headache to the electoral body is the deadlines. The Elections Act, in particular, spells out a host of timelines, including voter registration, transfer of voters and voter register inspection – aspects that would cause a lot of last-minute confusion – especially in the event the 70 new constituencies proposed in the BBI are introduced.
Article 8 of the Elections Act, for instance, stipulates that in the process of auditing the register of votes, “the commission may, at least six months before a General Election, engage a professional reputable firm to conduct an audit of the register of voters for the purpose of — (a) verifying the accuracy of the register; (b) recommending mechanisms of enhancing the accuracy of the Register; and (c) updating the register”.
Critics of the polls body fear that undertaking such crucial tasks, including the tendering processes at the eleventh hour, could open the entire poll exercise to technical hitches and rigging.
Kilonzo Jr, who is a lawyer, holds that a properly managed election “is not about who becomes president, but rather our stability as a nation. And we must make this a priority”.
He points out that IEBC’s problems are largely structural and were identified in 2016. He argues that the current commission has not implemented the proposals and warns that other commissions that follow will end up in the same quagmire.
Kilonzo Jr says that in her exit report of October 2017, former commissioner Dr Roselyne Akombe identified the things that ail IEBC, including political partisanship and lack of independence, “but she was ignored”.
“We need to sort out all proposed reforms and not leave anything to chance. The folly is to imagine that changing commissioners regularly will solve the issues that bedevil the commission,” says the lawyer.
Separately, there are fears of highly vested interests by the political class, which is likely to place a myriad of hurdles in the way of the electoral body, including causing deliberate delays and filing a series of litigations.
Yesterday Nandi Senator Samson Cherargei, for instance, warned the electoral body to be on the lookout for President Kenyatta and “his brother Raila”, alleging that “the biggest impediment and disruptions to the IEBC operation could come from the two and their allies”.
The senator cited the recent claims in the media attributed to Central Organisations of Trade Unions (Cotu) Secretary-General Francis Atwoli to the effect that the country would not go to the polls without factoring in proposals in the BBI. Atwoli reportedly even suggested that the General Election would have to be pushed to accommodate BBI, which among other things, proposes the expansion of the Executive to include offices of a Prime Minister and two deputies.
The IEBC has, however, drawn its poll timetable, devoid of the BBI prospects, only mentioning that it will focus on “other related activities”. Speaking on June 15 during the launch of its Strategic Plan and the Election Operation Plan for the period 2020-2024 at the Bomas of Kenya, Nairobi, Chebukati said the commission was focusing on the 2022 General Election, the boundaries review and electoral activities that may arise in the intervening period.
Among the documents produced and shared was a roadmap of electoral activities as well as key timelines ahead of the August 9, 2022 poll.
To address the technical challenges and confusion relating to transmission of results, Chebukati announced the commission would work in collaboration with the Communications Authority of Kenya and media outlets.
“We will have multiple servers: One for the media, one for political parties, one for the candidates and one for the public. Having one server as was the case in 2017 will not happen,” he said.