With one and a half years left to the next elections, the electoral commission is calling on Parliament to deal with the question about the term of the commissioners.
This follows last month’s advisory opinion by the Commission on the Administration of Justice — the Ombudsman — that the current electoral commissioners should be “encouraged to voluntarily and honourably leave office about the same time as the Chief Justice (Dr Willy Mutunga in June this year), so their successors can be appointed in good time to prepare for the 2017 General Election.”
As he marked a year since assuming office at the Independent Electoral and Boundaries Commission, Chief Executive Ezra Chiloba told the Sunday Nation that the matter was not for the commission to determine but it should be sorted out at least six months before the 2017 election.
“One of the risk areas is the uncertainty around the term of commissioners. For political or legal reasons everyone seems to be saying so many things now. That uncertainty must be sorted out. If it is legal then it must be sorted out legally. If it is political then it must be sorted out politically so that we go to the next elections with some form of certainty. How that is going to be sorted out is not for us to decide,” he said.
Eliminating uncertainties in the electoral process, he said, was the reason the commission has also prepared its strategic and election operations plan and shared them with the public.
He added that the commission will be advising “critical institutions who impact on the electoral process” to remove uncertainty on the political environment.
If we think that there are other issues that should be dealt with, we want to remind everyone involved to do so, he said.
“We must go to the elections with certainty about which commission we are going with to the next elections. Is it this one or is it another one,” Mr Chiloba said.
According to Mr Chiloba, this is for Parliament to take the lead.
“From where we sit, and this is my challenge as the head of the secretariat, you don’t want to be in a situation where commissioners have uncertainty because we want their commitment in preparing for the management of the next elections,” he said.
Commissioners were gazetted on November 9, 2011 and sworn-in on November 14, 2011 for a fixed term of six years. They are Issack Hassan (chairman), Lillian Mahiri-Zaja (vice chairperson), Mohammed Alawi, Thomas Letangule, Yusuf Nzibo, Muthoni Wangai, Albert Bwire, Kule Godana and Abdullahi Sharawe.
In an advisory opinion of January 5, Ombudsman chairman Otiende Amollo said: “There is a prospect of the process going beyond the end of the term of the commissioners which would create a constitutional crisis.”
This would occur if the presidential elections are contested and the Supreme Court orders a re-run.
A presidential re-run would be held 60 days later, that is on November 4, 2017, just days before the term of the commissioners expire and the results declared within seven days after the election.
Extending the terms of the commissioners requires a referendum.
The law also says the electoral commission chairman is the returning officer for presidential election.
Besides the advisory opinion, opposition leader Raila Odinga and his followers have also called for an overhaul of commission.
They claim that the 2013 elections, which they lost, was bungled.
According to Mr Chiloba, there are three ways to deal with the situation.
First, a new set of commissioners can be appointed at least six months before the lapse of term of the current commissioners and have them on standby to take over when the term of the current commissioners expire.
Second, Parliament may decide that the current commissioners leave before their term expires in which case the cost of their early exit must be met.
The third option is that their mandate be extended. However this requires a referendum.
“If you want to change a commission, and this is our view, you don’t have to wait until too late in the day. You must start the process much earlier so that the transition is smoother. We don’t want to take chances with the elections,” said Mr Chiloba.
CHICKEN GATE SCANDAL
Until the matter is sorted, the chief executive called on the public not to create apprehension and distraction among the commissioners and let them work as though nothing is going to change.
“There should be no room for that, at least from our commission perspective,” he said.
Mr Chiloba replaced Mr James Oswago whose term expired while out on suspension over questionable procurement of election materials for the March 2013 elections.
The 2013 elections plunged electoral commission into an image and credibility crisis that to date refuses to go away when the electronic voting kits failed to work.
The procurement deals cost the public billions of shillings and led to infighting between the commissioners and the secretariat.
In addition, the commission accrued Sh4 billion in unpaid bills that it has been grappling with to date.
“We are getting out of that. We are in a turnaround moment and we are overcoming that. The pending bills have been paid to the extent that we only have a balance of Sh1.5 billion for which we have requested the National Treasury to provide resources to cater for,” said Mr Chiloba.
One of the sensational corruption allegation was the chicken-gate, the multi-million-shilling corruption scam.
It was so named after UK’s Serious Fraud Office retrieved damning e-mail exchanges between security printing firm Smith & Ouzman and Kenyan electoral and examinations officials.
The UK printer allegedly paid about Sh50 million to the officials in bribes code named chicken.
Of the electoral officials named in the scam, only Mr Hassan is still in office after Mr Oswago, former Energy Cabinet Secretary Davis Chirchir, Gladys Boss Shollei and Kennedy Nyaundi left. The anti-corruption commission has been investigating the matter locally.
“We are eager to see the outcome of these investigations because we want to know where we stand,” said Mr Chiloba.
Cord intimates that it is due to lack of confidence in the commission that they submitted 200 hard copy booklets of Okoa Kenya referendum signatures instead of in soft copy.
The commission is now grappling to verify the signatures.
Cord also said it will set up a parallel vote tallying centre for the 2017 polls.
The electoral commission says they are free to do so as long as they do not use it to usurp the constitutional mandates of the commission as the arbiter on elections.
“They must know that the ultimate arbiter is the commission. It is the commission that counts, tallies and declares results. That is the legal position. We are not at all surprised to see some people saying ‘Hey, let’s have our tallying centre’. What we don’t want to see is disorder,” said Mr Chiloba.
The chief executive says he understands the public attitude towards the commission but hopes things will change for the better through collaboration.
“Post-2013, I think, forced the commission to go on the defensive for over a period of two years. That kind of narrative had therefore solidified but now we have to overcome that. That is why in our strategy we have made a deliberate effort in saying that we must invest in public trust. Let us be forthright with one another. The second bit is that we want to share information pro-actively (and) be more transparent with all our processes,” he said.