1. Call to disband/reform IEBC by a
number of Electoral Stakeholders
The Elections
Observation Group (ELOG) stands for Credible, Peaceful, free and fair
elections. Elections are discredited for a number of critical reasons. Key
amongst these is the credibility of the institution managing the process – the
elections management body, in Kenya, the IEBC.
The “credibility gap’ – the diminished public confidence in the
integrity and diligence of for many electoral institutions and their activities
– is a common problem for EMBs across the world[1].
There are many EMB
models used the world over to manage elections mainly based on the local (manly
political) contexts that play out in each respective country. The independent
model which is employed in Kenya presumes among other pertinent issues that the
EMB can be trusted to conduct elections without undue influence by other
parties/entities.
Over the past month,
Political pressure has been exerted for the IEBC to be at least reformed and at
most disbanded as a result of credibility concerns. The main opposition coalition
in the country, Coalition for Reforms and Democracy (CORD) has led the calls
through well publicized weekly street demonstration against the IEBC which
although initially peaceful have culminated in the death of 3 people being shot
by police as they tried to stop the demonstrations, terming them illegal. Other
stakeholders such as the Interreligious Council, the Central Organization of
Trade Unions (COTU), the Law Society of Kenya and a number of leading Civil
Society Organizations, have weighed in on the matter with some calling for reforms
while others out rightly calling for the disbandment of the Commission.
The issues cited for
the discrediting of the IEBC range from the handling of the 2013 general
elections where a number of issues such as the mismanagement of electoral technology
have been advanced, the handling of by-elections especially the recent ones in
Kericho and Malindi and the handling of CORDs Okoa Kenya Initiative which
intended to call for a referendum that sought to address a number of electoral
issues before the next elections. The other issue that has consistently been
raised has been the so–called the ‘chicken gate” scandal, where a number of the
commissioners have been implicated in a procurement corruption scandal
involving a UK firm. While action has been taken on the UK side, nothing seems
to have taken place on the Kenyan side despite files of the cases being
deposited at the EACC and DPP desks.
Further other issues
have also been raised. There are questions brought about by the low turnout in the
voter registration campaigns and whether this is indicative of low confidence
levels that may result in widespread voter apathy. Lack of clarity on the voter
register as evidenced in the recent by-elections in Kericho and Malindi where
there was alternate use of the electronic poll book (EVID) and the manual
register.
Lastly, even as the
debate on whether some or all the commissioners should be replaced, we still do
not have a clear procedure on the appointment of new commissioners and with
time running out in terms of preparations to the 2017 elections, this may bring
about another protracted process between the political players.
The Government and
the ruling party, Jubilee, have insisted that the law be followed in addressing
the issues raised so far. They insist
that the laws on the removal of constitutional commissions be followed using
the laid out parliamentary process. The
opposition decries the ‘tyranny of numbers” in parliament as an impediment to
objective debate and resolutions to the problem despite the many successes that
the 11th house has collectively agreed on.
Thus an electoral
stalemate in our hands
2. Transitional issues in the
Judiciary
Apart from the IEBC,
the other institution that comes into focus in respect to the electoral process
is the Judiciary. The Judiciary played a critical role not only in determining
the elections petitions of the 2013 general elections within the specified
period, but also through its highest organ, The Supreme Court, Determined the
presidential petition in the highly contested race. The Supreme Court has also
played a key role in giving advisory orders on pertinent constitutional issues
key amongst them being the provisions of the two-thirds rule and a raft of
other interpretations.
Based on their experiences
of the 2013 electoral disputes, the judiciary set up a working committee to
address the issues obtaining from the same as well as the development of
proposals on legal reforms. Early this year, the Court, while launching their
strategic plan, made the committee a substantive unit that will address all judicial
electoral matters in the new cycle.
Despite the above
positives, a number of events have conjured to cloud the judiciary ability to
arbitrate over electoral disputes and attendant legal issues. First, with the
early retirement of the Chief Justice later this month, seeming bitter
succession battles have begun. Confounding the issue further, is the fact that
the deputy Chief Justice is currently embroiled in court battles over her
retirement age, battles which seem to have split the Supreme Court into
opposing camps.
The other issue which
affects the integrity of the highest court in the land is the bribery claims on
one of the senior judges, Justice Philip Tunoi, who is accused of taking money
to influence the outcome of a gubernatorial seat petition. If proven to be
true, the case may implicate more judges in the Supreme Court bringing nearly
the entire bench into disrepute. This does not augur well for the electoral
process.
Further, and as raised
by ELOG in its 2013 Elections Report, the issue of the threshold needed to
validate or invalidate an election result in a petition has not yet been
addressed by the judiciary. Clear jurisprudence on this matter is needed before
the next elections come by.
Lastly, over the last
few weeks in which the police engaged the anti –IEBC protesters in what has
been christened ‘tear gas Mondays’, a number of violations have occurred in
respect to court orders. First the Courts gave orders allowing CORD to hold a
parallel rally during the Madaraka day celebrations. The police declared the
event illegal at first and wrote letters implying the same. They would later
rescind the same albeit reluctantly. The courts also gave orders on the
illegality of the proposed demonstration slated for the coming Monday, CORD has
quashed the same and said they will go on with their plans in disregard to the
orders.
This state of affairs
is indicative of a banana republic where no laws hold water and impunity reigns
supreme. It is a situation which cannot be allowed within the new
constitutional dispensations and a recipe for chaos.
TThe
two thirds gender requirement
ELOG has noted that implementing the ‘Two-Thirds Gender
principle’ is meeting obstacle after obstacle with those charged with the
responsibility of making the change happen wavering. The National Assembly has
occasionally failed to pass the Constitution Amendment Bill of 2015 which seeks
to ensure that no gender occupies more than two-thirds of the parliamentary
seats. What should be a question of inclusivity and human rights has been
whittled to a game of musical chairs where each available opportunity is taken
away successively. With time ticking away there is every possibility of
dissolution of the 11th parliament if nothing gives by the 27th
of august this year.
ELOG will support public interest litigation against
parliament if the issue is not addressed within the given timelines.
It’s a matter of a month and a half from now.
4.
Rumblings
around the Elections Date
During their retreat in the Coast for a national forum last
month, Members of the County assembly and Senators argued that the next general
elections to be held on the 8th of August 2017 would violate their
tenure in office as it would happen within their five year term limits as
directed by Article 177 (4) of the Constitution. This is despite clear
provisions of Articles 102 and 177 (1) which state and affirm the above dates.
While the date of the next elections is not in doubt, there
does seem to be a lacuna in the law that can be exploited by those who may wish
to defer the elections beyond the provided dates. Clarity on this should be
given by both the IEBC and the Judiciary in terms of interpretation of the law.
5.
Other
obtaining issues
ELOG condemns / deplores the excessive use of force by the
Kenyan security services and the violence that has rocked around the weekly
demonstrations in the vicinity of the IEBC offices in Nairobi and other places
around the country. We urge the security services to exercise restraint during
demonstrations and to protect the rights of free speech, assembly, and
political participation guaranteed by the Kenyan constitution.
The deaths and injuries of Kenyan citizens were tragic and
unnecessary. ELOG urges for a speedy investigation into the actions of the
security services and to hold accountable anyone responsible for the use of
excessive force. Destruction of property and attacks on bystanders by anyone
during demonstrations are also unacceptable.
ELOG calls for all Kenyans to reject violence. We again
urge/call for a constructive and inclusive dialogue to resolve the stalemate
between the government and the opposition over issues raised regarding the
Independent Electoral and Boundaries Commission (IEBC) and the electoral
process to ensure that the 2017 elections are free, fair, and peaceful.
Hate speech is the precursor to violence and has (been)
every electioneering year the country. We urge the National Cohesion and
Integration Commission (NCIC) which is mandated to promote ethnic harmony and
to investigate complaints of ethnic or racial discrimination or any issue
affecting ethnic and racial relations under Section 13 of the 2008 National
Cohesion and Integration Act - to seriously hold people accountable for
inciting people to violence and hatred.
[1]
Electoral Management Handbook, International Institute for Democracy and
Electoral Assistance (IIDEA)
