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Dislodging election agency bosses every five years bad for democracy

Ballot boxes outside Ruaraka Constituency tallying centre on August 11, 2022. [Kelly Ayodi, Standard]

Four petitions have been submitted to the National Assembly seeking the removal of the vice chairperson and three commissioners of the Independent Electoral and Boundaries Commission (IEBC). The Speaker of the National Assembly directed the parliamentary Committee on Justice and Legal Affairs, within 14 days, to investigate and determine whether any or all of the four should face a tribunal to remove them.

The grounds and the procedure for removal of a member of a commission or holder of an independent office is outlined in article 251 of the Constitution. These are; serious violations of the Constitution or any other law, including contravention of Chapter Six; gross misconduct; physical or mental incapacity; incompetence or bankruptcy.

Any person can petition the National Assembly, setting out the alleged facts constituting the grounds for the removal of a commissioner or a constitutional office holder. The National Assembly considers the petition and, if satisfied there are legitimate grounds, sends it to the president with a recommendation.

The president may then suspend the member or office holder, pending the outcome of the complaint and shall appoint a tribunal consisting of a current judge or a former judge of a superior court to serve as the chairperson; two people qualified to be appointed High Court judges and a person qualified to assess the facts in respect of the particular ground for removals, such as a doctor, an electoral expert or a human resource expert.

The tribunal is expected to investigate the matter expeditiously, report on the facts and make a binding recommendation to the president, who shall act on the recommendation within 30 days. If a commissioner is suspended during the proceedings of the tribunal, s/he is entitled to continue receiving half of their remuneration and benefits.

The four petitioners allege various grounds based on the four accused commissioners’ rejection of the results of the August 9 presidential election. The Republican Party’s grounds are that the four commissioners violated constitutional provisions dealing with leadership and integrity. Rev Dennis Ndwiga Nthumbi, the second petitioner, alleges gross misconduct and incompetence, while the third and fourth petitioners, Mr Geoffrey Langat and Mr Jerry Steve Owuor, respectively, allege gross violation of the Constitution and other laws, gross misconduct and incompetence.

Meanwhile, the Deputy Commission Secretary, of Operations, faces the sack for allegedly aligning herself with the four commissioners for arranging a plenary for them, thus impersonating the CEO and allegedly attaching, insulting and threatening a commission staff, Mr Moses Sunkuli, on August 12, 2022.

It is indeed true that there is a serious problem at IEBC. The Supreme Court pointed out the institutional dysfunctionality undermining the optimal functioning of IEBC requiring urgent legal, policy and institutional reforms to address the glaring shortcomings within the agency, especially in relation to corporate governance issues.

The Supreme Court recommended the enhancement of the statutory and regulatory framework to separate policy and administrative remit of IEBC. It also recommended that IEBC creates formal internal guidelines that clearly delineate the policy, strategy, and oversight responsibility of the chairperson and the commissioners and develops institutionalised guidelines on how to manage the separation of administrative and policy domains.

Further, it recommended that the roles of the chairperson, commissioners, and the CEO, other staff and third parties be clearly determined. The Supreme Court also made recommendations on election technology and statutory forms. Whether or not the petitions are successful, we really need to carefully rethink the type of democracy we want to nurture.

The culture of removing commissioners after every general election or disbanding the membership of IEBC, severely undermines democracy and good corporate governance and kills staff morale while severely damaging public trust and confidence in the institution.

IEBC should be more independent and professional like in India. Politicians have no business determining the membership of IEBC and commissioners should never pander to political, parochial and sectarian alignments.