Optimism brews ahead of electoral reforms talks

Independent Electoral and Boundaries Commission Chairman Issack Hassan addresses journalists after they paid courtesy call to Mombasa County Commissioner at his office on June 13, 2016. Cord and Jubilee are approaching the talks in an optimistic mood with seeming agreement that voluntary resignation of electoral commissioners would be a welcome first step to resolve the deadlock. PHOTO | LABAN WALLOGA | NATION MEDIA GROUP

What you need to know:

  • Jubilee, on the other hand, intends to oppose any role for politicians in picking commissioners and will seek an upgrade of the system for the electronic transmission of votes.
  • Mr Kuria on Saturday uncharacteristically struck a conciliatory note calling on both sides to lay bare all their positions for a faster and fruitful engagement.
  • The truce has ended the weekly protests that had made Nairobi city and other major towns across the country a no-go-zone as Cord supporters battled the police.

Negotiators from Coalition for Reforms and Democracy and Jubilee have staked out their positions ahead of key talks expected this week to resolve the stalemate over the Independent Electoral and Boundaries Commission (IEBC).

Cord will be placing a number of demands on the table, including the exit of the IEBC commissioners, the “cleaning up” of the election register and a possible role for political parties in picking a new team.

Jubilee, on the other hand - which is led by President Uhuru Kenyatta - intends to oppose any role for politicians in picking commissioners and will seek an upgrade of the system for the electronic transmission of votes.

Both sides are approaching the talks in an optimistic mood with seeming agreement that voluntary resignation of electoral commissioners would be a welcome first step to resolve the deadlock.

The select committee with equal representatives from the two alliances will be seeking to convince the commissioners, led by Mr Issack Hassan, to voluntarily resign instead of subjecting the country to a protracted process of sacking them.

However, extracting such a concession will be tricky with several commissioners digging in for a fight and insisting on their innocence.

On Saturday, IEBC commissioner Thomas Letangule said he would not join his four colleagues who had earlier in the week indicated they were willing to leave.

“We understand a committee has been formed but elections ended a long time ago and they are just going to fabricate things. All the same, we hope the committee will give us an audience. We would want to state our case because we are not guilty of anything.

If we leave as some people are suggesting we will be abdicating our constitutional mandate, which is a serious offence. We maintain our innocence,” he said.

Four IEBC commissioners — Yusuf Nzibo, Abdullahi Sharawe, Albert Bwire and Kule Galma Godana — are said to have already signalled their willingness to step down.

The team leader from the Jubilee side Meru Senator Kiraitu Murungi said time was fast running out hence the need to move with speed.

“If the commissioners are to be replaced we require adequate time,” he said.

Parliament is expected to adopt the names of the committee members on Tuesday so they can embark on the process of finding ways of effecting electoral reforms.

KEY ISSUES
The Jubilee team comprises Senators Murungi, Kipchumba Murkomen and Beatrice Elachi, National Assembly Deputy Majority Leader Naomi Shabaan and MPs Moses Kuria, Mohamud Mohammed and Jimmy Angwenyi.

Cord, led by Raila Odinga, has MPs Eseli Simiyu (Tongaren), Junet Mohamed (Suna East) and Mishi Mboko (Mombasa Woman Representative).

Others are Senators Mutula Kilonzo Jnr (Makueni), James Orengo (Siaya) and Johnson Muthama (Machakos).

A seventh member, possibly from Kanu, will join the team to replace Mogotio MP Hellen Sambili who turned down her appointment to the Cord negotiating team.

Mr Kuria on Saturday uncharacteristically struck a conciliatory note calling on both sides to lay bare all their positions for a faster and fruitful engagement.

“We will not be seven-a-side, we will be a team of 14 for Kenya,” he said.

He suggested that should the committee agree on sending commissioners packing, the transition should be managed in such a way that there is no vacuum.

The Gatundu South MP further said there is need for independent audit of assets of the IEBC, a similar position as that demanded by Cord.

“We need to send in an audit team from the association of auditors or a private audit firm to take stock of electoral assets,” he added.

Mr Kuria said electronic transmission of votes needed an updated and better tested software that will not crash when 'under stress'.

“The testing period of technology needs to be rigorous. The success of the next General Election hinges upon the efficacy of results transmission system and electronic voter identification.”

The committee is a product of mediation spearheaded by US Ambassador Robert Godec working with other Western envoys and religious leaders, following weekly protests by the Opposition to force the government to accept dialogue.

The truce has ended the weekly protests that had made Nairobi city and other major towns across the country a no-go-zone as Cord supporters battled the police.

But as the team gets down to work on how to come up with an agreeable polls team ahead of elections next year, already there are indications of potential deadlock over the mode of picking a successor commission.

Whereas Jubilee MPs sitting in the committee have express instructions from their principals, President Uhuru Kenyatta and deputy president William Ruto, not to endorse any method that would give political parties a role in picking the new set of commissioners, Cord hopes for a formula modelled along the Interparty Parliamentary Group (IPPG) of 1997 that saw parties nominate representatives to the defunct Electoral Commission of Kenya.

“We don’t mind other bodies being used to identify new commissioners — be they religious bodies, professional outfits or the Public Service Commission in the form of interviews — but not appointment by political parties,” said Senate Majority leader Kithure Kindiki.

VITAL POINT
Similarly, Cord is heading to the negotiating table with tough conditions, according to discussion notes seen by the Sunday Nation.

The Opposition will be demanding the clean-up of the voters’ register to remove the multiple registers IEBC has been accused of using in the last election.

“The compilation of a fresh voter register is one of the irreducible minimums for Cord. This means the commissioners (will have to) leave office with their multiple registers that caused confusion and were used to rig elections,” the notes state.

“The position of the coalition is largely contained in the Okoa Kenya constitutional amendment Bill. I am aware there are issues with the register of elections. The voter register was an issue that was not addressed in the presidential election (petition).

I have seen several registers printed before the elections. This is an issue that must be addressed,” Senator Kilonzo Jnr said.

While it is agreed that the first task of the committee would be to reach out to commissioners of IEBC to voluntarily step down, Cord is also pushing for a resolution that “once the commissioners leave office, they must be investigated”.

Mr Kuria, however, differs with Cord’s calls of far-reaching changes of the electoral architecture particularly on having results announced at the county level.

“This will create 47 centres of confusion. It’s a recipe for disaster. We will be looking for guarantees of agents in all parts of the country. If Jubilee can’t put an agent in Kisumu, that is already a fraud, if Cord can’t assign agent in Gatundu, that is trouble,” he said.

The Opposition team will also be demanding that the secretariat be cleaned of corrupt and inept officials, another sticking point that could drag the talks.

“Cord believes that commissioners did not act alone and that while (IEBC chairman) Issack Hassan led the commission, (a former) Cabinet Secretary had infiltrated the ICT department that interfered with results and who eventually crashed the server to hide fraud in vote tallying and transmission. Those have to be investigated and held to account,” the Opposition states.

In demanding for the record of commissioners, Cord aims to have the Joint Select Committee discuss the Sh50 million “chickengate” bribery allegation that some people in the commission received from UK security printing firm Smith & Ouzman.

PROCEDURE FOR REMOVAL
The Ethics and Anti-Corruption Commission (EACC) has been unraveling the scandal since 2014 but there have been no arrests or prosecutions locally, even though two directors of Smith & Ouzman were convicted in the UK.

Along with the “chicken” scandal, the Opposition holds that IEBC will not be cleaned of the rot without looking back at the payments the electoral body made to Face Technologies for Electronic Voter Identification System (EVIDs).

The talks could also veer towards a demand for a forensic audit of all the firms that worked with IEBC.

Further, the select committee will be confronted with the question of the management and transmission of results, particularly the presidential votes.

Chapter 16 of the Constitution states that commissioners can only be removed from office for a serious violation of the Constitution, including a contravention of Chapter Six on leadership and integrity.

Gross misconduct, physical or mental incapacity to perform the functions, incompetence and bankruptcy are further grounds for removal executed via a petition to the National Assembly setting out the alleged facts.

If satisfied, the Assembly sends the petition to the president who then forms a tribunal to investigate the matter before passing a verdict that the president acts on within 30 days.

This is a long route that could last for months before new officials take office.