The Independent Electoral and Boundaries Commission (IEBC) team has run into a political minefield on the quest for a referendum by the opposition, Cord, after it admitted that it does not have funds to verify Okoa Kenya signatures which is mandatory before the process can move to the next stage.
Against a low hanging cloud of suspicion from the politicians who see it as inclined in favour of their Jubilee opponents, the development has only complicated the relationship IEBC has had with the team led by Mr Raila Odinga despite earlier indications of a thaw after it declined to delete the name of Cord co-principal Moses Wetang’ula from the voters’ roll last week.
“The IEBC is under a Constitutional obligation to ensure that they meet the deadline. All the other things are excuses and they go a long way to lend credence to our fears that the commission is under somebody else’s influence. They cannot raise the issue of less funding now,” said ODM political affairs director Opiyo Wandayi.
IEBC chief executive Ezra Chiloba told the Sunday Nation on Saturday that they require additional resources to complete the verification.
“In accordance with the Public Financial Management Act, the Commission has made a request for urgent budgetary provisions to undertake the exercise,” he added.
Whether the commission is honest about the dearth of cash or not, the fact that its vice chairperson Lillian Mahiri-Zaja publicly committed that they would verify the signatures within 90 days, a self-imposed deadline which lapses on February 4, has only served to push its leadership into a tinderbox.
And any sign of going back on this promise is not being taken kindly by the opposition.
Mr Chiloba’s argument that the February 4 deadline was more of an administrative decision than a constitutional one has only served to ruffle feathers with the Cord brigade reading malice.
He says the Constitution does not specify the period within which IEBC should take to verify signatures.
His argument, he says, derives from Article 257(5) of the Constitution, which appears clearer about the timeline for the county assemblies to consider the draft bill.
“If the IEBC is satisfied that the initiative meets the requirements of this Article, the Commission shall submit the draft Bill to each county assembly for consideration within three months after the date it was submitted by the Commission,” it reads.
Okoa Kenya chairman and lawyer Paul Mwangi and Cord Management Committee co-chairman James Orengo, however, read malice in the commission’s interpretation.
“If you read the law harmoniously, you will realise that from the time promoters of referendum submit the draft bill and signatures, both the commission and county assemblies have a total of 60 days to make a decision on the matter. You do not create a legal lacuna where none exists,” Mr Orengo told Sunday Nation.
Mr Chiloba said it is still too early to talk about a referendum since there are players aside from them who will determine whether the country goes to a plebiscite or not.
“It should be clarified that at this stage, the Commission is in the process of verification of signatures. The law requires the Commission to submit the Bill to county assemblies who shall debate the Bill within three months.
“The Bill must be endorsed by at least 24 county assemblies before it is taken up by Parliament. If Parliament fails to pass the Bill or the issue relates to Article 255(1), then the referendum will have to take place. So, there are a number of legally ordained conditions that must be fulfilled before we talk about a referendum. We are yet to get there,” he said.
Kisumu Senator Anyang’ Nyong’o said “the issues that Cord is raising can only be amended through a referendum and that is what we want to do. We have done our part, IEBC better do theirs.”
The IEBC insists they are not in any way being malicious.
“There is no mischief here. Equally, we are not lurching on the issue of time to deliberately delay the process. We are determined to finish this process as fast as possible,” Mr Chiloba said, but added that funding was necessary.
Cord gave the electoral commission a 10 day ultimatum to release the Okoa Kenya signatures to pave the way for a referendum on the Constitution.
There are four other referendum proposals, all of which if approved by the IEBC will cause another headache for the agency and the Treasury.
The Constitution does not say how many, or after how long, a referendum can be done.
This year, the commission had presented a Sh2 billion budget to the Treasury but only got Sh500 million.
Cord had in November 9, last year, presented 1.4 million signatures to the commission, which should ascertain that all those listed are registered voters and meet the one million mark threshold to hold a referendum.
Law Society of Kenya President Eric Mutua told Sunday Nation that the Constitution does not envision a case where the verification of the signatures goes past the 90-day period.
“The Constitution says “shall” not “may” verify the signatures within 90 days and that does not give room for extension of the time to verify the signatures,” said Mr Mutua.
Dr Chiloba has suggested that to save money, the Cord referendum question could be included in the General Election ballot paper.
“Kenyans will have to decide the best sequence, because having a major electoral event in the same cycle as the General Election has its challenges,” Dr Chiloba told The East African two weeks ago.
Dr Chiloba told the weekly that the commission had mobilised 100 workers to convert the data from hard to soft copy.
In the Bill, the Opposition proposes that the commissioners of the electoral body be appointed by political parties based on their numerical strengths in Parliament.
Cord also wants counties to control at least 45 per cent of the national revenue, governors to control security and the formation of a Ward Development Fund to be run by members of the county assemblies.
It further wants the Senate to participate in approval of appointments to constitutional commissions and institution and not exclusively National Assembly, among other proposals.
Cord leader Raila Odinga has already started a charm offensive to meet members of the county assemblies to endorse the Bill once it reaches the regional Houses.
Gatundu South MP Moses Kuria who is pushing the Punguza Mzigo Initiative and Mukurweini MP Kabando wa Kabando of the Boresha Initiative are also drafting their Bills before collecting signatures to support the same.
Mwingi Central MP Joe Mutambu has also proposed a Bill that seeks to reduce the number of counties from 47 to 25, as well as scrap the Senate and the position of Women representatives. He also wants more money sent to the counties.