Where the conduct of elections is an issue, the law only matters to a point

Whenever issues of the forthcoming elections in Kenya are discussed, the word legitimacy keeps a persistent presence.

So persistent is it that I wonder why the Jubilee government and the electoral commission cannot see its relevance. Yes indeed, I am deliberately yoking the commission to Jubilee in my analysis; nothing in the actions and words of the commission convinces me that they understand the critical need to keep a distance from but remain impartial around Kenyan political actors.

The Independent Electoral and Boundaries Commission (IEBC) began to squander its legitimacy soon after March 2013 when they announced the winner of that election. Unlike 2007, there was no major smoking gun in 2013 in terms of abuse of the electoral process to delegitimise the institution.

When the Supreme Court of Kenya upheld the announcement of Uhuru Kenyatta as winner of those elections, the focus shifted away from failures at commission into a backlash against the Supreme Court. In the circumstance, radical action against the commission was postponed.

Since then, the commission has grown arrogant. The chairman has been a key reason why few have confidence that the institution he heads will deliver a free, fair and credible electoral process and outcome.

During the court proceedings at the Supreme Court, the chairman ripped into Raila Odinga, dismissing him as someone who does not appreciate competition.

Speaking through his lawyer, the commission let it known how much disrespect and contempt it holds a leading luminary of opposition politics in Kenya. The chairman should have held his tongue; on matters election, any election management body and its staff must maintain a measure of objectivity even in moments of extended pressure.

But on many more occasions, the partiality of the commission and especially of some of its commissioners has been evident. If this is not through insinuations and actual statements that privilege those in government, the perception remains that the commissioners are indeed incapable of being impartial.

MEET THE OPPOSITION

This includes instances where they respond grudgingly to requests to meet the opposition and civil society, a reaction that they would never have towards those in government.

Matters are not helped by the ‘chickengate’ scandal in which the officials were adversely mentioned. Worse, Jubilee politicians have come through with statements that lead one to wonder if they know something about the next general elections that all of us do not know.

The confidence of Jubilee that it will hold power beyond Uhuru Kenyatta’s second term defies the logic. I also noted with concern dismissive comments from members of TNA regarding the Akoa Kenya campaign when such matters were still confidentially held at the commission.

But, perhaps more damning of IEBC is the sense it gives that it treats the opinion of many Kenyans with disdain. This is especially the case each time they dismiss calls for their removal from office by referring to the law.

There is no doubt that the law exists and obedience to its provisions is important. But when the law becomes the excuse for cushioning their tenure, obedience to the law becomes complicity in perpetuating a wrong.

And this is where we are with IEBC. Their constant reference to the law has become a means to mobilise complicity with an electoral process that is off to a very bad start.
That the government continues to defend the commissioners at the electoral commission does not help matters.

That the same government refers to the law to dismiss those already suspicious of the on-going electoral process shows that they are oblivious to the fact that law without legitimacy is useless. Already, opinion is divided on the credibility of the electoral commission. This is not a circumstance conducive to the conduct of free and fair elections.

Godwin R. Murunga is a senior research fellow in the Institute for Development Studies, University of Nairobi