Referendum a major test for constitutional institutions

What you need to know:

  • There exists a view that Hassan, like the troubled CEO James Oswago, has already conducted his last General Election and that his departure from the IEBC is the minimum concession that can be made to put the 2013 elections to rest and allow the country to move on.
  • While the room for dialogue always exists, Kenya’s problem at the moment is that there are few credible people occupying the middle column.

The Opposition, Cord, has put in motion the process towards a referendum to amend the Constitution, which it said was its next course after the government rejected its original demand for a national dialogue, and has appointed legal experts to lead the process.

As this goes on, the overall political context remains toxic with recriminations over the 2013 presidential elections whose results the Opposition still disputes. There is also pervasive insecurity, about which the Government and the Opposition have traded accusations.

At one level the referendum will be a continuation, by other means, of the ongoing political struggle, and the campaigns that will precede the actual vote are likely to further rupture the country.

If it goes ahead, the referendum will present the next significant test for independent constitutional institutions, severely criticised for their handling of the last elections, which will be expected to show that they can do a better job than during the elections.

Particularly, the Independent Electoral and Boundaries Commission failed badly in the use of technology for the elections after the voter identification and results transmission systems failed to work on the day, forcing the commission to improvise with a manual system which lacked the accountability features built into the electronic system. Also, the Supreme Court was blamed for its feeble judgment in petitions questioning the presidential election results.

One of the challenges for the referendum is that it has to deal with the IEBC. The strong views that its chair, Issack Hassan, holds towards opposition leader Raila Odinga are problematic for the referendum and will stand in the way of any presumption of neutrality that Hassan would otherwise have been entitled to.

Once the promoters meet the legal threshold for a referendum, it will cease to be a private affair and will become an issue of citizens attempting to invoke a legitimate constitutional mechanism, for which they are entitled to official support, and relevant public authorities will come under constitutional obligation to facilitate the referendum. Hassan’s views on Raila raise reasonable questions as to whether he can lead the IEBC in playing a neutral role.

There have been calls for the leadership of the IEBC, including Hassan, to take responsibility, if for nothing else, the fact that the U$200 million spent on the last elections was not value for taxpayers’ money given the technology failures.

There exists a view that Hassan, like the troubled CEO James Oswago, has already conducted his last General Election and that his departure from the IEBC is the minimum concession that can be made to put the 2013 elections to rest and allow the country to move on.

If the referendum goes ahead, it will accelerate Hassan’s departure from the IEBC, since he cannot conceivably play a role in it, because of his views.

It is reasonable to suggest that the trigger for his departure should be if the opposition manages to gather the number of signatures required for a referendum. If Hassan clings on, an independent organ, perhaps a court of law, can determine whether he is suitable for office.

Unacceptability
Matters may be compounded if the referendum question incorporates the fate of the IEBC. How can the public expect the IEBC to be fair in the conduct of a referendum that concerns the direct interests of its members?

Notwithstanding the formal rules on a referendum, this question will somehow have to be addressed. No clear answers exist, and while there has been criticism of a suggestion by the opposition that an external body, like the United Nations, be requested to run it, the unacceptability of a situation where the IEBC presides over a decision concerning its own cause cannot be denied.

There is every possibility that other actors will join the push for a referendum. Particularly, governors have had their own grievances concerning the Constitution.

If they join forces with the opposition, this may alter the nature of the referendum, make it more bi-partisan, and would improve its appeal.

A successful referendum supported by governors and the opposition but opposed

by the government, would be a difficult outcome for Jubilee, as it would upstage the government and may lead to significant political realignments.

A referendum is not a substitute for politics based on good faith. Since the Constitution cannot provide for every possible scenario, political maturity must be mobilised to address any gaps left by the law. The push for a referendum, itself a reflection of bad-faith politics, is a reflection of the collapse of bi-partisan politics in Kenya.

While the room for dialogue always exists, Kenya’s problem at the moment is that there are few credible people occupying the middle column.

The religious leadership, which once occupied this space, has sided with Jubilee and condemned the opposition, and the media, which could have played a supportive campaign, are also leaning towards the government side.

The UN office in Kenya has also taken the unprecedented decision to play a partisan role in the country’s domestic politics aligned with Jubilee, even though the opposition says the UN can run the referendum.

All these groups could have played a more meaningful long-term role if they had not taken a one-sided view of the contest between Jubilee and Cord. The moment now belongs to the President and requires statesmanship.

He should initiate dialogue. He may feel that to do so will suffer him a loss of face, but this is a small matter compared to the unknowns that a referendum represents.