The scramble to control the composition of the Independent Electoral and Boundaries Commission (IEBC) is developing into another political battle.
President William Ruto and Azimio leader Raila Odinga have over the past few months exchanged barbs over the planned removal of four commissioners.
The commission is facing serious challenges because the term of office chairman Wafula Chebukati and two commissioners is ending. Meanwhile, the Cherera Four are facing a petition to remove them from office.
The four Juliana Cherera, Irene Masit, Justus Nyang’aya and Francis Wanderi are facing petitions before the National Assembly’s Justice and Legal Affairs Committee (JLAC), over their refusal to accept the presidential results declared by Chebukati on August 15.
Given the zeal with which Kenya Kwanza MPs are approaching the matter, it appears, the fate of the four commissioners is as good as sealed because of the alliance’s numerical advantage in Parliament.
The committee continues with its hearings today but could be doing so in the absence of the commissioners. Azimio allied legislators have vowed to boycott the hearings that saw lawyers representing the four commissioners storm out of a session last Thursday.
They also did not appear for the hearings, which ODM leader Raila Odinga urged the commissioners to stay away from, on Friday. Azimio leaders argue the outcome of the hearings has already been predetermined by their Kenya Kwanza counterparts.
Political interference in the workings of IEBC is however not unique to the current happenings and is what the 2010 Constitution sought to cure.
The fight for control of the commission began in 1997 when five political parties agreed that each nominate five commissioners.
Before that the president used to unilaterally hand pick commissioners favourable to him, hence repeated complaints of election rigging.
And so the Electoral Commission of Kenya (ECK) as IEBC was known at the time, was reconstituted under the leadership of late lawyer Samuel Kivuitu.
All went well until the fiercely contested 2007 elections between Raila Odinga’s ODM party and President Mwai Kibaki’s PNU whose results led to post-election violence.
The aftermath of that election also led to reconstitution of the commission from recommendations made by the Kriegler Commission, which also birthed IIEC, which later became IEBC) and the current reforms in the voting system.
Although Article 251 provides guidelines for the removal of commissioners over alleged misdeeds, changes have been effected largely through political pressure.
Raila’s CORD coalition organised sustained demonstration at IEBC offices after the 2013 presidential elections and later forced out chairperson Issack Hassan and his team.
Political pressure also led to the departure of four commissioners after the 2017 elections, leaving Chebukati, Boya Molu and Abdi Guliye in office.
Chebukati and his colleagues bravely fought attempts to force them out and remained until four other commissioners were appointed in September 2021.
The appointment came after an attempt by President Uhuru Kenyatta and Raila to reconstitute IEBC through the Building Bridges Initiative (BBI) were thwarted by the courts.
The BBI report had proposed to remove Chebukati, Molu and Guliye from office and appoint a new team ahead of the 2022 polls.
The report also wanted all the returning officers to be contracted on a part-time basis and not oversee more than one general election. The qualifications for the chairmanship of IEBC was to be made open and not remain a preserve for lawyers as provided for by the constitution.
Had the proposal been approved by Kenyans through a referendum, then the IEBC chairperson could have been anyone with at least 15-year experience at a senior management level. And the chairperson could also have been accorded more powers doubling up as the Chief Executive Officer of the Commission.
Political interference has equally dogged most of the 11 independent commissions that were created in chapter 15 of the Constitution.
Since 2010, the unseen hand of the Executive has seen appointments of commissioners in the Ethics and Anti-Corruption Commission, the National Police Service Commission, IEBC and even the Judicial Service Commission among others.
The electoral commission is expected to be independent, devoid of either influence or any other interference from either the executive or politicians but that has not been the case if history is anything to go by.
Jill Cottrell Ghai argues that independent means basically that IEBC should be making its own decisions.
“The broad objectives of all independent commissions in the Constitution are, to protect the sovereignty of the people, ensure state organs respect democratic values and principles, and promote constitutionalism,” writes Prof Ghai.
Political analyst Martin Andati, in an earlier interview with The Standard said political influence remains a big problem to the integrity of IEBC and the commissioners.
Politicians opposed to the hearings before JLAC argue the timing of the petitions appears to be well choreographed to coincide with the departure of the chairman.