Why it would make sense to ask election chiefs to leave office

The troubles experienced by the electoral commission, which finds itself facing rejection by a large number of the players interested in the management of elections, is a reflection of the challenges that the country still faces, notwithstanding the enactment of a new Constitution.

The 2010 Constitution was in many ways a reaction to the ugly outcomes of the 2007 presidential elections when a dispute over the results degenerated into a major conflict that verged on a civil war.

The ensuing mediation process to restore political stability paid great attention to reforms in the management of elections, calculated to ensure that the country would avoid a repeat of the embarrassment that had resulted from the 2007 elections.

A number of measures were agreed on as a response to the 2007 problems, including the bold decision to disband the disgraced Electoral Commission of Kenya, which was blamed for the incompetent manner in which that year’s elections were run.

The ECK was replaced by a caretaker commission, the Interim Independent Electoral and Boundaries Commission, and ultimately by the Independent Electoral and Boundaries Commission (IEBC).

Secondly, the Constitution included principles that were a more specific measure of the quality of future polls. One of the reasons leading to the 2007 crisis was the refusal by the Orange Democratic Movement, whose candidate, Mr Raila Odinga, was adjudged to have lost the election, to challenge the results in court. He claimed the courts were under the control of his rival, President Mwai Kibaki, and that he could not expect justice there.

As a result, the 2010 Constitution paid attention to the mechanism for the resolution of disputes arising from the presidential election and created the Supreme Court. This became the highest court, supplanting the Court of Appeal, and was conferred with the exclusive jurisdiction to determine disputes arising from presidential elections.

ELECTION DISPUTES

Because there had been delays in the resolution of the election disputes resulting from previous presidential elections, the 2010 Constitution provided that disputes submitted to the Supreme Court would need to be resolved within 30 days.

The dispute by Mr Kenneth Matiba resulting from the declaration of President Daniel arap Moi as the winner of the 1992 presidential election was not resolved until after 12 months.

The dispute by Mr Kibaki against the declaration of President Moi as the winner of the 1997 election was resolved after 24 months. By then, the presidency had settled into the new term and there would have been political difficulties if, for example, the High Court had found that Mr Moi had been invalidly declared President.

The idea behind providing a quick resolution of disputes was to prevent political anxiety over the contested leadership.

Other than the memory of the pain that the country went into as a result of the failed elections in 2007, the ignominy with which the ECK commissioners were driven out of office should have been a reminder of the need to conduct elections in a manner that met the country’s expectations.

The fact that there is renewed concern about the management of the 2017 elections and a clear agitation for the removal from office of IEBC commissioners, suggests that the reforms embarked on since 2007 have not produced the desired results.

While the IEBC has come to symbolise the institutional fragility that accompanies preparations for the 2017 elections, the Supreme Court, which is also an elections institution, has had its own problems.

These are evidenced, for example, by allegations of corruption against Justice Philip Tunoi, one of the members of the court. There are also important transitions in the court, including next month’s retirement of Chief Justice Willy Mutunga, and an unseemly fight over the retirement age of judges. But why is there such a strong focus on IEBC at this time?

The answer lies in how the aftermath of the 2013 elections was managed. After releasing the results, for which the IEBC received strong condemnation in several quarters, the commission avoided situations where it would be required to account for how it had performed.

In September 2014, the IEBC held a high level meeting to which it invited South African judge Johann Kriegler, and which was a public discussion of an internal audit that the IEBC said it had done on the 2013 elections. The process used in that audit remains an IEBC secret as is the audit itself.

The avoidance of independent scrutiny, ensured by a practice of secrecy around the reviews governing the 2013 elections, has been the main coping mechanism for IEBC up to this point. However, with another round of elections coming next year, the day of reckoning for the IEBC has come.

The elections body is being made to answer questions it should have addressed soon after 2013 but which it has so far managed to avoid.

To many election actors, an inquisition into the past would be complicated and would take more time than the country can afford, at a time when the preparations for the next elections must begin immediately.

To these stakeholders, asking the commissioners to leave also means many questions about the past will never be answered. However, with the clock ticking towards 2017, asking the commissioners to leave office unconditionally seems the most efficient use of time. It would allow a clean slate where preparations for the elections can begin afresh, and without the encumbrance of the unresolved secrets of 2013.

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