Law is clear on how to handle IEBC

Article 81 of the Constitution sets out the general principles of the electoral system. Article 88 proceeds to establish an independent and neutral body in the form of the Independent Electoral and Boundaries Commission.

The Constitution then proceeds to provide that the IEBC shall be responsible for the conduct and supervision of elections. Any attempt to set aside the IEBC and appoint others to conduct or supervise a General Election would constitute a violation of the Constitution.

The Cord coalition has contended that the IEBC as currently constituted is not able to conduct or supervise the General Election scheduled for next year and, therefore, its commissioners should be forced out of office through demonstrations.

It has not put forward any cogent reasons why the commissioners could not deliver a free and fair election. The foremost allegation is that some of the commissioners, while serving in its predecessor, were mentioned in connection with or participated in the “chickengate “ scandal. This scandal did not involve all the commissioners.

Accordingly, even if there was evidence that those three or so commissioners took part in the alleged bribery, that could not justify the removal of all the commissioners or indeed the disbanding of the IEBC.

If indeed there exists evidence to show that the commissioners received bribes in connection with the performance of their office as public officers, the correct course of action is either to make a formal complaint to the Director of Public Prosecutions for a criminal process to be initiated or to bring about a petition for their removal from office on the grounds that they were involved in conduct making them unfit to hold public office. The procedure for doing so is provided in the Constitution.

There is a procedure for appointment of replacement commissioners if such a petition were to succeed and the tribunal(s) set up to investigate the matter were to recommend removal of the commissioner(s).

Cord has asserted that the electoral laws need to be changed. It is not clear what changes it wishes made nor is it clear why no attempt has been made to introduce the changes it desires in Parliament, where it has substantial representation.

Changes in the electoral laws can be made through parliamentary action but cannot abolish the independent nature of the commission and cannot substitute it with a political or civil society commission.

FRIGHTENING COMMISSIONERS

Changes of the character of the 1997 IPPG cannot now be introduced. Such changes would require amendment to Article 88 and other relevant provisions of the Constitution.

The demonstrations appear to be aimed at frightening the commissioners out of office. This cannot lawfully allow Parliament or anyone else to establish a commission comprising politicians or clergy or civil society operatives.

Any attempt to alter the composition of the IEBC by mere parliamentary legislation would constitute a violation of the Constitution and any law enacted to that effect would be unconstitutional.

As long as the commissioners have not committed any actionable wrong, they are entitled, indeed obliged to stay in office and execute the task for which the commission was established. They cannot lawfully conspire to defeat the Constitution, as has been suggested that they be paid off to retire.

It is necessary to clarify for both Cord and Jubilee and any other person who may feel inclined to take part in the conspiracy to subvert the Constitution that any action designed at reconstituting the IEBC otherwise than as is provided in the Constitution will not only be illegal and criminal but will be resisted by all peace-loving citizens of our land.

This attempt to dislodge the IEBC from the responsibility of conducting or supervising the next General Election, however executed, is a rigging process.

A newly constituted IEBC only 15 months to the polls would be unprepared to execute the six-tier elections.

The legal processes that are bound to arise would make any resultant general election illegitimate, thereby prolonging the life of the current administration and probably resulting in the destabilisation of the country.

It should be obvious that such a process would not serve the interest of either of the contestants and would not be in the interest of this country.

Mr Muthoga is a judge at the United Nations Mechanism for International Criminal Tribunals. [email protected].