Reconstitution of IEBC proves a hot potato at Bomas bipartisan talks

National Dialogue Committee co-chairs Kalonzo Musyoka (left) and Kimani Ichung'wah at the Bomas of Kenya, September 2023. [Dennis Kavisu, Standard]

President William Ruto and his Kenya Kwanza administration will most likely reap more dividends from the constitutional reforms talks than Raila Odinga’s Azimio la Umoja One Kenya coalition.

Political analysts argue that most of the key proposals on the agreed agenda favour the Kenya Kwanza side apart from the reconstitution of the Independent Electoral and Boundaries Commission (IEBC).

Debate on how the commission will be reconstituted is however another hot potato that is creating a lot of tensions at the ongoing Bomas of Kenya talks.

Prof Gitile Naituli of Multi-Media University thinks the president’s agenda is driving the talks towards constitutional amendments to give him more bargaining power.

“They are very keen on using these talks to entrench the office of the Leader of the Opposition, the Prime Cabinet Secretary and the National Government Constituency Development Fund in the Constitution,” says Naituli.

He argues that the Azimio side should have pushed more for tax reliefs and other cost of living issues they had raised earlier during mass protests because that was why Kenyans supported calls for dialogue.

Other political pundits also agree that creating the two offices will require a referendum, which the Kenya Kwanza side knows can be achieved through consensus.

That could, therefore, explain why Ruto’s side is also eager and desperate for the talks to succeed apart from creating a calmer environment for governance.

Naituli also argues that entrenching NG-CDF may go through a referendum because the role of Parliament is specified in the Constitution as representation, legislation and oversight and additional responsibilities, therefore, will amount to altering those functions.

“I think they will have to decide whether they want the presidential or parliamentary system because most of the proposals they are making are not possible in a hybrid system of government,” says Naituli.

Some factions in Azimio led by leaders from the Mt Kenya region have been forcefully repelled by the Kenya Kwanza side for attempting to derail the talks.

But as the frenzy of making submissions continues at the Bomas of Kenya, Naituli cautions Kenyans that they should not engage in a mob patchwork of defacing the supreme law based on myopic sensations, self-interest and political opportunism.

He thinks the Building Bridges Initiative (BBI) that was subjected to legal scrutiny by High Court should be a good point of reference for the dialogue team.

 Centre for Multi-Party Democracy director Franklin Mukwanja advises against a total constitutional overhaul, instead asking incremental reforms to improve and strengthen the institutions that can better implement the 2010 constitution.

Both sides appear to agree on the reconstitution of IEBC although National Dialogue Committe co-chair Kalonzo Musyoka says they have so far not agreed on how it should be done.

Political analyst Martin Andati thinks the Azimio side is pushing for an all-inclusive commission similar to the 1997 Inter Parties Parliamentary Group (IPPG) arrangement.

He, however, cautions that politicians in Azimio may settle for personal interest when more electoral reforms are needed in the management and administration of IEBC.

“Do they just change commissioners by stuffing it with their own people or do they carry out comprehensive reforms, including overhauling the secretariat?” asks Andati.

Electoral laws

He argues that it is not enough to have commissioners that favour one side because Azimio had four against three who offered a different opinion in 2022 but still cried foul when results were released.

This week, Prime Cabinet Secretary Musalia Mudavadi also called for a comprehensive review of the electoral laws in good time to allow for proper preparation of the 2027 presidential election.

Speaking in Nakuru during the Electoral Law and Governance Institute for Africa (ELGIA) consultative workshop on the post-election electoral law reform agenda, he argued that past changes fell short because were more political than transformative.

Mukwanja, however, calls for not only a review of the independence of IEBC but also what should be done to create more trust in the commission.

The IEBC is currently not fully constituted because it has no commissioners and yet it is expected to conduct by-elections, boundary delimitation and mass voter registration across the country.

Among challenges IEBC has faced over the years is lack of adequate funding or the late release of money, challenges that make it to be ill prepared in every election cycle.

IEBC has, in the meantime, cautioned that it will not meet set deadlines to conclude the delimitation of new boundaries slated for March next year because of the many challenges it is facing.

And so it has asked for extension of time, the main reason being the delay in appointing new commissioners, meaning they would require 18 months to conclude the process after their recruitment.

The Azimio leadership has also called for audit of the 2022 election servers but pundits argue that alone will not be enough without addressing the bigger issue of the technology used in processing the voting and transmission of results that has created a lot of chaos in the past.

Sources at the committee say the Kenya Kwanza side wants the recruitment of commissioners approved by Parliament and appointed by the President while the Azimio side is rooting for political parties to nominate names.

“They want it done through a selection panel but Azimio is adamant that the IPPG way should be the means of recruiting commissioners,” said one of the members of the committee at Bomas.

The Constitution currently provides for not more than nine commissioners including the chairperson but IEBC has since the enactment of the current constitution been managed by seven people while observing the one third gender rule.

The IEBC secretariat led by the CEO Marjan Hussein Marjan says the process of scrutiny of election technology that Azimio is demanding is not fully defined in law.

Marjan told the Kalonzo-Ichung’wah led committee last week that  a legislative framework should be created to guide the process of scrutinising presidential election results before the Supreme Court renders a decision.

The issue of poaching MPs from the opposition by the President has also raised temperatures in opposition ranks and is also another point of departure at the talks.

“What new thing can we also do with the office of the Registra of Political parties to improve regulation and management of parties for better performance or to create intra party democracy and mature multi-party democracy?” asks Mukwanja.

Asked if the President Ruto’s hidden hand could be behind some radical proposals like increasing president’s term limits, Naituli says it is highly likely because of the control he has on Kenya Kwanza MPs and others who have technically defected from the opposition.

Lost goodwill

Andati also contends that the president’s side has already reaped benefits from the dialogue through the tranquility the country is enjoying after Raila entered into a truce with Ruto.

Issues like the one-third gender rule that Kenya Kwanza itemised on its agenda for the talks will also resonate with women and help them manage Raila and his troops better.

“Nobody is talking about the cost of living now and yet that is what gave Azimio traction, but they also don’t seem to have prepared their side fully in the fight for reduction of taxes and food prices,” says Andati.

The bottom line, therefore, is that the goodwill the Azimio side were enjoying because of humming on the cost of living issue is no longer there.

The clamour for more county governments has also featured in the ongoing talks with most of the demands coming from regions that support president Ruto’s Kenya Kwanza side apart from Mwingi and Gucha that largely voted for Azimio last year.