Even as the Court of Appeal hears the case against the determination of the five-judge Bench that paralysed the Constitution of Kenya (Amendment) Bill 2020, on May 13, Kenya is racing against time in its preparation for the next General Election.
The country could easily find itself in a time bind, if key players do not begin paying attention to the elections, separate from the amendment Bill.
Both the Constitution and the Elections Laws (Amendment) Act 2017 expect that in less than 12 months’ time from now, the country will be on the final lap of electing a new President, the 13th Parliament, as well as County Government bosses and the assemblies. Sustained focus on the Building Bridges Initiative (BBI), has however made it look as if the normal electoral processes and timelines were on hold. It is possible this consideration has occasioned Catholic Bishops to call for a shift of focus from BBI to the General Election.
The systems must gather organised pace before close of this year, both at the IEBC and in political parties, if the country will have an orderly election in August next year. The Elections Laws (Amendment) Act 2017 requires that political parties shall nominate their candidates by May 9, 2022.
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Section 13(1) of the amended law reads, “A political party shall nominate its candidates for an election under this Act at least ninety days before a General Election under this Act, in accordance with its nomination rules.”
Because the next election falls on August 9, 2022, parties must hold their primaries by May 9 at the latest. This means they have 11 months to get their act together. Among other things, this entails polishing up their membership registers and sprucing up nomination rules for submission of both to IEBC within the statutory timelines.
According to Section 28(a) of the Act, membership lists must be with IEBC at least 120 days before the election. This places the last day of submitting the lists on March 19, next year. Nomination rules for party primaries, on the other hand, must be with IEBC six months before the election day, in line with Section 27 of the Act. The rules will, accordingly, be with the commission by February 9.
It is a rat race for political parties to get their own houses in order, barring which they could find themselves locked out of the elections. Nomination rules not with IEBC by February 9 will not be recognised. That means the party will not field candidates, as there will be no basis. Parties will especially, note keenly that the courts are becoming very strict about processes, as the condemnation of the BBI process demonstrated.
A political party that decides to amend its nomination rules will have to wait for 90 days to lapse, from the day when it submitted the amendments to IEBC, in line with Section 27(b) of the Act. The last day for amending party primary rules is, therefore, May 9, 2022. But the original rules will have been submitted on or before March 19.
The advent of BBI, with the controversial political debates around it over the past three years, has skewed focus from statutory and constitutional political affairs to an extent that could push the next General Election into a tempest of a time rush, even for IEBC itself. Competitive, and often hostile, public debate within the political elite class has made it almost look like there can be no General Election before the conclusion of the BBI process.
Equally significant is what seems to be the assumption that if the BBI Bill is subjected to a national referendum, it will invariably sail through and everything else will follow.
Messy set up
Should the Bill be defeated at a referendum, it could throw the country into a spin, if the rest of the election timelines have not been followed. But success could also lead to a messy set up, for there is little time left to the fulfilment of statutory electoral requirements.
That could explain why some political gadflies have made muffled pronouncements about extending the life of the present parliament, to make room for any subsequent legislation from BBI and give enough room to prepare for the General Election.
In contemplating this, however, the political class may have to reckon with an outraged citizenry that could possibly be fatigued with the present regime, as usually happens when a regime’s tenure is ending.
In times of general economic and social hardship, the public tends to get a sense of relief from the thought that the government in power is about to give way to something new and probably more promising. Kenya is experiencing such times, compounded by the fallout of the Covid-19 havoc.
Ordinarily, any proposed change of law does not stop institutions and processes from continuing to function in line with the existing law.
This is regardless that the changes, in the case of the Constitution, are proposed through a Parliamentary initiative or a popular initiative, according to Articles 255–257 of the Constitution of Kenya.
A proposed constitutional amendment does not create a vacuum in the law. Kenya is, therefore, not in a constitutional void, despite the fact that there is a proposal to amend the law, supported by President Uhuru Kenyatta and a powerful slew of the political class in the Opposition.
The real danger for the country resides in the possibility of rushing to a chaotic General Election, the necessary orderly processes having been slowed down by overwhelming focus on BBI.
That BBI is itself presently stalled in court corridors is a damper on the process. Still, it stands a fifty-to-fifty chance of being resuscitated, as are all matters before the courts.
In the event that it survives the present setback, this would still not be adequate cause to slow down the electoral process. For, the electoral process is protected by the Constitution and the various relevant Acts, with the Elections Laws (Amendment) Act 2017 ranking foremost in statutory law.
The recent jump starting of the process to populate the commission in line with the Constitution and the Act signals the hope that all is not lost. For its part, the commission reports that it has developed the Elections Operations Plan (EOP) for the General Election, and the Boundaries Operations Plan (BOP). Both should be launched soon, according to commission sources. Procurement and mass voter registration activities are expected to be done “on budget availability.”
Continuous Voter Registration (CVR ) is said to be ongoing at constituency offices, all the time, except for where there are by-elections. Procurement of technology support is also said to be on-going. Finally, the first tranche of the 2022 General Elections budget is expected to be included in the 2021-2022 financial year budget, to be read in a few days from now.
Regardless, the commission has massive work ahead. It has not done any mass registration of voters, as it admits. Ahead of the 2017 elections, mass registration was done in 2014 and 2017, despite the existing provision for continuous registration.
Scrutiny of register
The law requires that such registration should be done and that registers must be open for inspection, at least 90 days to the election day.
Registers were a huge bone of contention in the 2017 election controversies between NASA leaders on the one hand and Jubilee Party and IEBC on the other. The country could be headed the same way again. Likewise, procurement issues seem to be in a dark place. In 2017 IEBC faced a plethora of pre-election litigation regarding procurement.
It is instructive that the process then began in 2016, unlike today when it is not even clear when the process is set to begin. As soon as IEBC invited tenders through advertisements, it found itself in court, landed with 50 cases that challenged the stages of procurement. There was also legalistic wrestling with the of Public Procurement Advisory and Review Board over procurement.
The board cancelled the award of printing of ballot papers to Al-Ghurair Printing and Publishing Company of Dubai. The courts also cancelled further awards, at least twice. Repeat drama could be in the offing.
Meanwhile, NASA had a raft of 11 items dubbed “irreducible minimums.” They wanted them addressed before they could participate in repeat presidential poll of October 2017.
Some of the more critical concerns pertained to the ICT framework and its use at various stages, the manner of printing various forms and the details, as well as how they should be used and appointment of returning officers and, most important, result transmission.
All these concerns point to the possibility of politically chaotic times ahead. They also point to the need for judicious reflection on the BBI process on the one hand and the normal electoral process on the other and the need to keep the two separate.