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Issues over IEBC and Supreme Court may endanger constitutional system

Sunday September 10 2017

Independent Electoral and Boundaries Commission chairman Wafula Chebukati (left) and commissioners Margaret Mwachanya (centre) and Roselyn Akombe addressing journalists at Anniversary Towers in Nairobi on September 1, 2017. PHOTO | EVANS HABIL | NATION MEDIA GROUP

Independent Electoral and Boundaries Commission chairman Wafula Chebukati (left) and commissioners Margaret Mwachanya (centre) and Roselyn Akombe addressing journalists at Anniversary Towers in Nairobi on September 1, 2017. PHOTO | EVANS HABIL | NATION MEDIA GROUP 

By GITAU WARIGI
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Matters may be getting from bad to worse to dreadful. From a divided Supreme Court which could not deliver a unanimous ruling, we now have an IEBC in full-fledged civil war.

The war is being fought in the most unseemly way: Through leaked internal memos worded quite uncivilly.

It is being fought at two levels, among the commissioners and with the secretariat.

Choices indeed have consequences, as one American once told us. It is the same with the decisions we take. Considering that the two institutions – the Supreme Court and the IEBC – are charged with superintending the coming repeat election on October 17, the omens are not good.

INDEPENDENT

The two bodies are technically independent. Yet the two forces battling to control this country, which are Jubilee and Nasa, are right now in no mood to allow them that freedom any more.

As I write, they have muscled into the IEBC with a raft of demands that have left this theoretical independence in disarray. Plus, Jubilee has vowed once it is re-elected it will “fix” the “problem” in the Supreme Court, and the entire Judiciary for good measure. Mark my words, there is great danger ahead.

The institutions at this level make a huge mistake when they don’t bother to seek internal unanimity, or at any rate consensus, when they make momentous decisions with historic State implications.

This is why I am extremely uncomfortable with the rifts in the Supreme Court and the IEBC.

POLITICAL POWERS

This failure only gives political powers the entry point they are always looking for to butt in and take control. When this happens, as has happened already, all bets are off.

The way the Caribbean islands are bracing from the hurricanes currently slamming them, we should also brace for very rough times ahead.

The state of affairs unfolding at the IEBC must raise doubt on whether there will be an election on October 17. This is a constitutional requirement, but not necessarily an existential one.

There may very well be an election, but the institutional instabilities that have been laid bare could mean longer-term instability for the country. I very much want to see a silver lining in the gathering dark clouds. Yet, much as I look, I can’t see any.

RIGID POSITIONS

Jubilee and Nasa have taken rigid positions regarding the IEBC and the Supreme Court. These positions happen to be irreconcilable. Pleas for institutional independence at this stage are of no effect.

Parliament is in no temper to moderate things because it is controlled by one party. And the elected Jubilee members are in one accord with the Executive.

Ominously, the ignition has been switched on. The gears are being engaged. When the Kenya bus starts hurtling downhill, it will be impossible to stop it.

Some Sh130 billion was wiped off just like that at the Nairobi Securities Exchange in a few days of the Supreme Court giving its ruling.

The Kenya National Chamber of Commerce and Industry says the local private sector has lost Sh21.3 billion in earnings since the ruling owing to “political uncertainty.”

POLITICAL HEADWINDS

The vulnerability of our economy to negative political headwinds should be obvious to everybody.

Of course, there is a different picture constitutional purists want to look to beyond the economy. Before we know it, we start sliding into basket cases like DR Congo.

Only then does reality hit home for everybody. That may take some time. But it will happen, depending on what plays out in the near future.

On Friday, the Majority Leader in the National Assembly, Aden Duale, told the IEBC in no uncertain terms to put their house in order.

PARLIAMENT

Alarmingly, he cited a legal provision Parliament can use to bring the IEBC and everybody to heel. The same day, Raila Odinga was calling on President Kenyatta to resign.

National Assembly Speaker Justin Muturi, together with Duale, control that chamber. I see the Executive commanding that House to take the legislative actions it deems need to be taken against the IEBC and the Judiciary, before God knows what else.

The times are bleak.

Warigi is a socio-political commentator