In December 2007, after 5 years of steady economic growth under the NARC government which assumed power following a free and fair election whose results were fully embraced by both the victors and the losers, the country was suddenly thrust into a terrible political crisis caused by that rigged election. From an 8% annual rate of growth in 2007, we recorded a miserable 2% in 2008 as the Post Election Violence claimed 1,300 lives and close to half a million internally displaced persons.
This loss of momentum in economic growth has always been there every time Kenyans panic about uncertain elections since independence. If we continue like that every five years in the coming years, the world will begin to look at us as very funny and sadistic fellows. We may never achieve Vision 2030, let alone Vision 2060! Elections will always remain moments of madness when we destroy what we have built and then begin working on how best we can capitalize on our differences to fight even more vicious political wars in subsequent elections. This is simply insane.
After enacting a new Constitution in 2010 that sought to address the constitutional shortcomings which lead to election crises, the results of the 2013 Presidential elections were still contested in the Supreme Court because the IEBC never did a good job and the state unashamedly interfered with the electoral process. Even the appeal process itself was faulty. Given the time the Court allowed to hear the appeal by CORD, the hearing process proved unsatisfactory and the ruling rather inept, producing yet another crisis of confidence in both the Supreme Court as well as the Independent Elections and Boundaries Commission (IEBC).
The performance of the IEBC in managing the elections as well as defending itself in court created doubt regarding its capability and impartiality as an arbiter in election contests. That lack of confidence continues to deepen as we approach the coming elections in 2017, and as investors--both local and foreign--begin to panic about the future of Kenya. But the fundamental problem with the IEBC is not simply in its current composition where the men and the women therein have deep deficiencies in credibility; the real problem is to be found in how the IEBC and the electoral process were crafted in the 2010 constitution. There are dangerous acts of omission and commission in how the electoral process was envisaged.
During the referendum campaigns for the new constitution in 2010, the NO group rejected the Constitution because 20% of it was deemed to be unsatisfactory; amendments were needed before it could be approved by Kenyans. The YES group concurred that 20% was indeed unsatisfactory; but they advocated approving the draft constitution and amending it subsequently. In the end the leadership of the NO group assumed state power after the 2013 election while the YES group went into the Opposition. That doubtful 20% had a lot to do with unsatisfactory constitutional provisions for managing elections.
As fate would have it, the YES leadership, once in the Opposition, started to scrutinize the Constitution to deal with the 20% aspects which it had promised to amend after the election. With draft proposals in hand about two years ago, the CORD leadership proposed a dialogue with the government to discuss constitutional amendments along with other national issues which were increasingly becoming contentious and putting the future of the nation in jeopardy. At first President Uhuru Kenyatta welcomed the idea. After a few days, however, having felt strong resistance from his Deputy on the issue, the President beat an about turn and told the opposition off. The Deputy President was more explicit in his stand. If the Opposition felt that they could arm twist the government to have some share in exercising state power through the so-called dialogue, they were dead wrong: "hakuna nusu mkate hapa!" the DP duly warned. Without engaging with a reluctant President in the important national endeavour of amending the Constitution, the Opposition decided to go it alone. It sought for change by resorting to the sovereignty of the people as set out in the constitution.
Chapter 16 of the Constitution stipulates in Articles 255-257 how this constitution can be amended. There are certain aspects of the constitution, such as the Bill of Rights, which can only be amended by the people through a Referendum; there are others which can be amended by an Act of Parliament with clearly stated majorities. At any time, however, as Article 257 stipulates, any aspect of the constitution can be amended by a "popular initiative."
The Opposition identified 4 major problems in our constitutional provisions for managing elections. The first is to do with compiling and maintaining a list of voters in one authentic register known and open to the public for scrutiny before, during and after elections. This register should be available in hard and electronic forms and should not be varied at the whims of the Commission. This means that the process of registering voters should be followed as stipulated in law and fully managed by a competent commission. During the last election it was never fully established how many registers the IEBC had. The IEBC itself was not sure how many Kenyans were qualified to vote.
The second is to do with counting, relaying, tallying and announcing election results, particularly with regard to the Presidential elections. While the present provisions are too open ended in Article 86(d), the Opposition proposed an amendment in the Okoa Kenya Bill which would make the counting at polling stations final so that results are not manipulated in the process of being relayed to, tallied and announced from Nairobi. The electronic manipulation of the voting, relaying and counting process was the primary method by which the 2013 elections were rigged.
The third problem regards disputes arising out of the Presidential election. The current 14 days given to the Supreme Court is highly inadequate. The Okoa Kenya Bill proposes 60 days, very much like in Ghana or the US. Given the experience of the 2013 petition debacle, this is a sober and very constructive proposal.
The fourth mischief that the Okoa Kenya Bill seeks to deal with regards the independence and impartiality of the IEBC. The current IEBC commissioners were proposed by members of the previous coalition government, appointed by the President and approved by Parliament. With a Chairman who serves as long as his commission lasts, there is a likelihood that the institution can be captured by external forces when it has no other authority to report to but the president. There is currently no constitutional or legal mechanism by which the IEBC can be truly accountable to the three major constituencies in the electoral process: the political parties, civil society and the people of Kenya as a whole. To deal with this mischief, the Okoa Kenya Bill proposed an IEBC of 5 commissioners appointed by political parties, or coalitions of political parties, according to their numerical strength in parliament. The commissioners would then elect from among themselves a chairman who serves for a maximum period of 12 months. This will improve collegiality among the commissioners and avoid the imperious behaviour that the current chairman has exhibited, much to the detriment of the dignity and integrity of the commission. A mechanism of structured consultation with, and accountability to political parties and civil society is also proposed.
Having connived to frustrate the Okoa Kenya initiative on a technicality--very much contrary to the constitution--it is unlikely that the current commissioners would support any proposals to reform the IEBC. Yet these reforms are necessary to ensure an election in 2017 which all political parties, and Kenyans as a whole, will have faith in. That is why, as a first step towards reforming the election laws and processes, the current commissioners should give way to yet another "interim commission" which will perform "holding operations" while the reform process is going on. Fortunately we have the IPPG experience of 1997 from which we can partly get a template on how to proceed. I say "partly" because the IPPG was conceived as a "gentlemen's agreement" under the old constitution. We now have a new constitution where the sovereignty of the people is paramount. At a momentous time like this any process of profound change in our electoral process must not be perceived by the people as being "privatized" by the political elite. It needs to have the credibility of popular engagement and approval.
But to get there doors must be open for dialogue. This is what the OKOA Kenya initiative is all about: to save Kenya from an impending botched elections if the rules of the electoral game remain the same under a biased referee. The OKOA Kenya Bill is in the public domain. Let the government also put its written proposals in the public domain so that the two sides can then have "talks about talks." In the meantime, it is simply Machiavellian for the government to use maximum repression against the demonstrations by the opposition rather than demonstrating its good will to talk.
Let us not discard the message because we do not like the messenger. The bell is tolling for all Kenyan patriots to come together irrespective of political party affiliation, religious belief or ethnic identity to save our nation through yet another reform process that will lead us to the Third Liberation through a truly democratic, free and fair elections. A constitutional, rule based, competently and accountably refereed free and fair election is the only guarantee against yet another moment of madness which may engulf us if we don't embrace these needed reforms ahead of 2017.
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