By Ndungu Wanaina
IEBC Must start preparing for 2022 Election Now; Law need to properly stipulate the nomination of runners-up in Presidential election to Parliament with clear duties and responsibilities
International Center for Policy and Conflict (ICPC) notes that Kenya’s 2017 elections were fraught with technical and integrity problems leading to nullification of the Presidential election. These weaknesses were underpinned by weak commitment to timely critical decision-making and ill preparedness of Independent Electoral and Boundaries Commission (IEBC) that meant key decisions were left too late to be effective.
The concern is that if the next round of high stake election in 2022 is conducted in such uncertain environment and through weak management capacity and / or manipulation, it will undermine public confidence in political and legal processes to resolve election disputes, leading to the reversal of democratic gains and at worst, outbreaks of violence. 2022 General election presents formidable challenges that need upfront address if they are to produce widely accepted and credible election results.
Electoral reforms in lead up to the 2022 general election must be aimed at reinforcing the credibility of elections with a view to ensuring the full benefits of democracy, which include peace and security, inclusive development and the respect of human rights and the rule of law. The 2017 highly polarized and disputed election outcome demonstrated how election, which is meant to promote stability and facilitate the peaceful transfer of power, can become divisive if the process is not handled professionally, transparently and with integrity. It is not surprising that when an election is seen as a mere technical exercise enabling a person or a group to accede to or remain in power in an otherwise wholly undemocratic context, they quickly become a source of disillusionment and violence. While no election is ever perfect, not even in the most developed and stable democracies, people want their election to be fair and credible.
One key lesson Kenya is learning is that elections alone are not enough, even if all technical and organizational procedures are respected. The reason is simple: democracy is not just about legality, critical though, the rule of law is for a peaceful society; it is about legitimacy. Elections must offer genuine choice. On the other hand, if the elections that brought a government to power are seen as rigged or unfair, and the subsequent government does not govern in a democratic manner, it will not enjoy any of the benefits associated with democracy. Indeed, it will find it ever harder to govern at all. The challenge facing nascent democracy like Kenya is to ensure that elections are couched in a democratic spirit, and backed up by strong institutions that can ensure and sustain electoral integrity.
A number of structural problems need to be addressed to prevent future Kenya elections from being divisive, problematic and dangerous. Prior to the 2017 general elections, the electoral reform process was undertaken extremely close to the Election Day. This resulted in a compressed timeframe that put extremely high levels of operational pressure on the IEBC.
The short time frame for implementation of electoral reforms led to electoral forensics showing serious election fraud with even scarped or cleaned up data.This further enhanced state capture that has systematically been eroding democratic processes, which as a result, has promoted the status quo making it hard for the reforms to be fully implemented.
While significant progress has been made in bringing precarious political stability through the enactment of the Constitution of Kenya 2010 and setting up various independent constitutional bodies, these are only few but major steps to achieving the desired democratic election goals. There are recommendations to ensure that electoral reform process is undertaken with serious intent and that results are seen.
The recommendations include:
· Actions be taken to strengthen the resilience of constitutionally independent institutions involved in elections, to preserve checks and balances in the electoral process.The IEBC’s independence and accountability be strengthened through greater financial autonomy and the appointment of future chairpersons and commissioners through a merit-based, multi-stakeholder selection committee. The quorum for commissioners’ meetings, as well as the decision-making majority, be increased to promote institutional cohesiveness and consistency. Plenary meeting decisions be required to be immediately publicly available.
· IEBC should be reformed to restore public confidence, credibility and integrity. The problem is not the Constitution but how the IEBC Act and recruitment of the personnel is designed which allows gross political interference. There is need for retention of a constitutionally established Independent Electoral and Boundaries Commission (IEBC) in line with Article 88 of the Constitution of Kenya. However, IEBC must be fully transformed to guarantee its structural, operational and funding autonomy. There is need for lean and professional IEBC that can withstand the test of time. It must be an institution that create situation of predictability and certainty with Kenya electoral cycle). The current IEBC has very weak (Constitutive Act problem) and vulnerable to interference and manipulation. The IEBC Commissioners be reduced and only conduct the function of the oversight and policy while Secretariat be strengthened and devolved to the Constituency for proper management of electoral and election processes in accordance with law.
· As per the Constitution of Kenya 2010 and Courts’ decisions in 2017 that the election’s results with finality are those counted, verified and announced at the Polling station and Constituency Tallying Center respectively, devolve and enforce watertight election management processes at the polling station and constituency tallying center. Court of Appeal made a far reaching ruling in 2017 that the results in each of the 290 returning officers are final. This means that the presidential results announced at the constituency level will be final and all that will be done at the National Tallying Centre is addition of the results announced at the constituencies. The court said that the section of the law that gives IEBC or its Chairperson powers to make any alterations to the results is contrary to the provisions of transparency and accuracy. It is clear beyond peradventure that the polling station is the true locus for the free exercise of the voters’ will. The judges pointed out that it is an offence for any of its employees, officials or commissioners to knowingly subvert the election process and that one is liable to imprisonment for a period of up to 10 years. They also noted that Returning Officers are required by law to retain the tools used in announcing election results for a period of three months and that one can be fined a maximum of Sh500,000 for interfering with or mutilating poll materials.
· The Parliament undertakes electoral legal reform on a cross-party basis well in advance of the next election, and in accordance with Article 108 of the Constitution of Kenya, enact law clearly stipulating that the runners-up in the Presidential election will automatically be nominated to lead and speak on behave of his or her party in National Assembly while the running mate with be nominated to join the Senate. Their duties and responsibilities must be well defined in the law. This will ensure inclusion and participation of all parties and their supporters in the country’s policy and legislative decision making processes.
· Promote internal party democracy through stronger enforcement powers for the IEBC and the Office of the Registrar of Political Parties. Including in regard to candidate nominations and representation of marginalized groups. Strengthen the ban on public resources being used for campaigning
· Require the Office of the Registrar of Political Parties to publicly report on parties’ compliance with gender requirements and on the application of penalties. In addition, establish requirements for parties to increase the proportion of persons with disabilities in party leadership positions and running as candidates, and to publicly report on this and on their policies and disabilities.
· The Parliament to operationalize the Election Campaign Financing Act to regulate the amount of money received and spent by candidates and political parties during an election or referendum. This should strengthen oversight mechanisms for political party financing to include more specific monitoring requirements by the Office of the Registrar of Political Parties of parties’ income and expenditure including during election campaigns and accompanying transparency provisions.
· The IEBC develop a voter registration plan based on various recommendations including formalized, structured inter-institutional collaboration and development of a strategy for the removal of names of deceased voters. Also, research be conducted on possible future integrated systems involving other agencies responsible for population databases. Further, statistics from electronic identification devices be recorded together with the number of people who voted by manual procedures, as well as ballot reconciliation data.
· Legal requirements be introduced for a comprehensive results transmission framework, to include prompt publication of disaggregated results at polling station result forms for all elections, as well as clear provisions for electronic and manual results transmission. This is so as to enable consistent application and confidence in the declared outcomes. Further, law must make it mandatory for the Presiding officer and Returning officer to publicly announce that results that have been verified, authenticated and confirmed both at Polling Station And Constituency Tallying center to enhance transparency, integrity and public confidence in election results. The media should be allowed to announce and publish those results.
· Establish legal time limits for the filing, hearing and determination of pre-election cases, and consider reducing the number of appeal levels, so cases are completed well in advance of Election Day. The deadline for the determination of post-election presidential petitions should also be extended, to allow more realistic time for the preparation of cases after results publication and full due process in court, including the possibility of recounts.
· Strengthen the mechanism for enforcement of the Election candidates integrity and eligibility. No law breaker would be allowed to become law maker. Further, all election candidates must file in detail their tax returns, wealth and property declaration, financial probity, and background record checks.
· Establish shorter timelines for prosecutions of electoral offences, with requirements for regular updates by the Office of the Director of Public Prosecutions and other agencies involved. Similarly, in regard to cases of threats to or violence against journalists and others involved in the election process.
· The Parliament should promptly review the electoral system and its impact on the political participation of women and inclusivity in a broader sense, and reform as appropriate for compliance with the constitutional two-thirds gender principle for elective positions.
The writer Works at Africa Council on Human Security