Karua threw constitution at Uhuru - Duale

It was a meeting at Sheria House in 2007 that set in motion the events leading to today's IEBC crisis. Or so the story goes.

Opposition leader Uhuru Kenyatta had gone to see the powerful minister for Justice and Constitutional Affairs Martha Karua to propose a formula for selecting members of the electoral commission that would be acceptable to both sides of the political divide.

The story goes that Karua picked up a copy of the constitution, threw it at Uhuru and said, "Show me where it is written that we should do that."

Karua has been quoted as saying in January 2007, "Only the President has the power to appoint electoral commissioners."

Shortly after that Sheria House meeting Karua proceeded to name six members to the Electoral Commission of Kenya, chaired then by Samuel Kivuitu.

Jubilee's majority leader Aden Duale says this was the single action that led to the decline of the electoral body, the post-election violence and the current debate on the composition of the IEC's successor, the Independent Electoral and Boundaries Commission.

"They are the ones who went and disagreed with Kivuitu and undermined the electoral commission," Duale said yesterday at a meeting between the leadership of the National Assembly and the Kenya Editors Guild.

Duale used the story to illustrate his position that consensus, rather than inflexibly insisting on the letter of the law, is the way out of the current stalemate over the composition of the IEBC.

"[Former President] Moi had the power to appoint commissioners, but he allowed the parties to have a say. When the term of some commissioners expired, Uhuru went to see Martha Karua. She threw the constitution at him and said, 'Show me where it is written.' She picked the new commissioners herself and this resulted in the post-election violence," Duale said.

The electoral commission, he argues, should be comprised of members selected by the Public Service Commission — with little on no input by political parties — to ensure a truly independent IEBC.

"Even now I disagree with the proposal that the government picks two representatives to the selection committee and the opposition picks two. That is against the constitution, which says constitutional bodies should be independent because the members of the selection panel have a chance to influence who becomes commissioner," he said.

Selection by political parties "will water down the constitutional independence of the IEBC. Political players cannot determine who there referee will be," Duale said.

He cited Zanzibar where two commissioners were picked by the opposition, two by the ruling party, one by the President and one was independent. After the disputed election last year and rerun in March this year, the ones picked by the opposition said the opposition won, and the ones picked by government said the government won. In the end, the chairman nullified the elections.

"Even if Uhuru and Raila agree, ultimately they will bring it to Parliament and I will oppose it," he said.

Duale said a lacuna in the law surrounding establishment of a selection panel to recruit new commissioners means the embattled IEBC commissioners cannot leave office until after December 2016.

The Cord coalition led by former Prime Minister Raila Odinga has maintained the Issack Hassan-led team must quit office immediately, arguing the panel lacks integrity to oversee the general election next year.

The constitution provides that the amendment bill on selection, which has been published, will be introduced to the National Assembly today for first reading before it is reintroduced after 90 days. It will take another 90 days for the Senate to okay the law should it be passed by the National Assembly.

"If Hassan and his team left office today... or if one commissioner died, God forbid, there is no law on how they will be replaced," Duale said.

But chairman of the Justice and Legal Affairs Committee Samwel Chepkong'a disagreed,saying the presence of three members from the Public Service Commission on the selection panel will help arbitrate any political deadlock.

He said the committee is ready to receive proposals on how to reform the IEBC, including petitions on removing the commissioners.

Both Duale and Chepkonga maintained that this constitutional amendment bill would not disband the IEBC but create a legal framework for the recruitment of the electoral body's next bosses.

"The media has not reported accurately on this. There has been misinformation that the committee has found the cure to disbanding the IEBC," Duale said.

Speaker Justin Muturi said political players and civil society can discuss how to resolve the IEBC issues.

"As a House, we are open. It is not too late for political players, sitting with civil society, to begin talking about the electoral management system we want, Muturi said.

Source