The disarray and mayhem that rocked Kenya’s electoral commission after the September 1, 2017 Supreme Court judgment that controversially overturned President Uhuru Kenyatta’s victory in the August 8 election has exposed the tantalising liberal idea of “independent” electoral institutions as tragic, shambolic and a threat to the stability of fragile states.
The Independent Electoral and Boundaries Commission (IEBC) is now a classic textbook case of chronic failure by its election managers to defend the constitutionally guaranteed independence and to kowtow to the debilitating demands and interests of the political class.
The cost of spineless election managers to national security and nationhood are dire.
Ironically, and in contrast, the Supreme Court’s ruling has been praised across Africa as a triumph of judicial independence and assertiveness.
Far from undermining the autonomy of IEBC, the Supreme Court’s order that the first respondent (IEBC) and the second (its Chairman) in the Odinga v IEBC and others petition conduct fresh elections in accordance with the Constitution self-evidently asserted the independence of IEBC and strengthened its hand against predatory segments of Kenya’s political class.
In exercising its independence, the electoral commission named October 17 as the date for fresh elections and embarked on preparing for the repeat poll.
But, unable to assert its independence, the IEBC has remained the ground zero of cut-throat elite power tussles and political machinations.
On its part, the Raila Odinga-led opposition has rhetorically paid lip-service to the “independence” of the electoral management body.
In practice, its stalwarts have used high-handed demands, threats of mass action, invoked the populist language of “consultations” and embarked on fierce lawfare in the form of numerous ruinous court cases to undermine the constitutional independence and autonomy of IEBC and exercise undue influence on its policy choices and direction, especially in staffing, procurement of services, finance and election implementation.
After the September 1 ruling, its demands pushed the commission to the tipping point. It accused the IEBC of naming October 17 as the date for the fresh election without consulting it — which is not a constitutional requirement for IEBC to function.
Odinga rejected the new timetable and gave conditions for his participation in a fresh poll despite the clarity of the Supreme Court ruling.
Among these is the sacking of several top officials at the IEBC, including Chief Executive Ezra Chiloba and his deputy Betty Nyabuto, and the heads of IT, voter registration and the legal team. This is a death sentence for the IEBC as currently constituted by law.
Odinga’s campaign chief, Musalia Mudavadi, has added to this list of draconian demands a full audit of the commission’s IT systems, and scrutiny of its servers and network systems.
Naively, far from defending the independence of the IEBC, its Chairman, Wafula Chebukati, has appeared to play to the opposition’s game. A spur-of-the-moment attempt to mollify the opposition’s demands by appointing a “special project team” with Marjan Hassan Marjan as coordinator to run the repeat election was dead in the water.
This threw the commission into confusion and disarray, and was vehemently opposed by the Jubilee leadership.
A leaked memo from Chebukati to the commission’s CEO, Ezra Chiloba, revealed a commission split right through the middle — a phenomenon that is ominously reminiscent of the badly divided Electoral Commission in Ivory Coast that threw the West African country into a civil war after the calamitous November 201o election.
As for now, Chebukati appears to have calmed the waters. But he has to firmly deal with claims galore of infiltration of the commission by operatives of both sides of the political divide. He has to take IEBC’s independence vis-à-vis political interests seriously.
His choices are stark. He has to choose between expediently kowtowing to political interests or adhering to the orders of the Supreme Court on him and the commission to conduct an election strictly in line with the Constitution.
On its part, Jubilee is under pressure to be seen to respect the independence of the IEBC as a strategic step to enhance the legitimacy of its expected victory in the fresh election.
But it is worried that the disarray, uncertainty and vacillations in IEBC can lead to a muddled election that risks being rejected by the opposition or thrown out by the court, triggering a chain of costly and abortive elections infinitum.
That is why President Kenyatta has come out guns blazing. On September 8, he called on Odinga to stop attacking the IEBC, and to concentrate on hunting for votes.
He also demanded that the commissioners stay out of the political arena and not allow themselves to be dictated to by political players. “Just do your job,” he said.
DEVOLUTION OF ELECTIONS
But what eludes Jubilee is that as currently constituted, IEBC can neither defend its independence nor conduct an election that the Supreme Court legal puritans led by Chief Justice David Maraga can give a clean bill of health to.
In the light of this, it is time we begin discussing the devolution of the management of our elections to forestall “irregularities and illegalities” commissioned by an inept IEBC from undermining the sovereign will of the people, pushing the country to a civil war, and undermining our nationhood.
Kenya is paying for the sins and excesses of its neo-liberals who, after the country’s return to multi-party democracy, pushed us too far into a fictitious form of the “independence” of the electoral commission that even the world’s most advanced democracies have not dared to adopt.
The United States, United Kingdom, Denmark, Singapore and Switzerland have faithfully stuck to the Governmental Model of Election — which Kenya started off with — where elections are organised and managed by the executive branch and implemented by local authorities.
Human rights activists are unlikely to entertain Kenya’s return to the more stable and still the most popular and effective model in the world.
Ultimately, only an home-grown model of a devolved election management can bring to an end the perennial uncertainties, paralysis and security risks wrought by the ultra-liberal model of “independent” commissions.
Prof Kagwanja is a former Government Adviser and currently heads the Africa Policy Institute