IEBC commissioners must resist efforts to steal mandate

What you need to know:

  • So many laws have been created to hobble the organisation of elections that commissioners and staff of the Independent Electoral and Boundaries Commission have to seek a legal opinion before they sneeze.
  • Were it not for the law or its merchants in the courts, the electoral agency would have completed counting dead voters months ago; it would have installed biometric identification technology in each of the 45,000 polling stations around the country.

Laws are so inconvenient, they keep getting in the way of good election preparations, as Kenya’s Independent Electoral and Boundaries Commission can attest.

So many laws have been created to hobble the organisation of elections that commissioners and staff of the IEBC have to seek a legal opinion before they sneeze. Nuisance litigators have challenged every decision the IEBC has made – from the appointment of the firm to count dead voters, the procurement of elections technology, to the printing of ballot papers.

Others have forced the commission to extend the dates for the registration of voters; overturned decisions to force public servants seeking election to leave office six months before polls day; or to announce presidential election results at some backwater constituency headquarter.

NEW WAYS

Every court decision relating to the IEBC’s work has forced the commission into finding new ways of doing things it wanted, such as awarding the contract for auditing the voter register to KPMG as originally decided; procuring the biometric voter identification technology from the firm that supplied the 2013 elections; and asking the Al Ghurair Printing and Publishing company despite the finding that the procurement process was flawed.

Were it not for the law or its merchants in the courts, the electoral agency would have completed counting dead voters months ago; it would have installed biometric identification technology in each of the 45,000 polling stations around the country. In short, it would just be ticking days off the calendar in the countdown to this year’s General Election.

Heck, the commission might just have barred some unsavoury characters from contesting elections were it not for the fear of lawsuits.

CASH KIOSK

Even though qualifications for commissioner or chief executive officer at the IEBC include a law degree, relentless litigation has bred a culture of uncertainty, turning the commission into a cash kiosk where learned friends come to collect their pay in gunnysacks. Last year, legal fees alone chalked up a bill of Sh2.1 billion, and there is still Sh1 billion unpaid.

Since the new commissioners came into office early this year, completely unaware where the light switch was after the unceremonious departure of their predecessors, courts have been trying to do their work for them, rendering their claim to independence hollow. Where they want to bar a candidate from contesting elections, the courts want to have a say in that. If the Constitution wanted the Judiciary to run elections, it could have appointed the Court of Appeal to manage elections in place of the IEBC.

The Constitution wanted to allow for human error, hence the existence of the IEBC. If the IEBC followed every law to a T, there would be no election petitions, and the court system would be idle all year.

MOST CONFIDENT

This is the environment that has made the IEBC easily the most confident electoral agency in the country’s history. It is giving as good as it gets, especially when the Opposition besmirches its character with tall tales of staff visits to State House and membership to community campaign foundations. The commission is never intimidated, and it is never silent.

The commission's chairman is arguing for his constitutional right to declare the presidential result to prevent anarchy while the government is defending its probity in awarding contracts, the law notwithstanding.

A character in Charles Dickens' Oliver Twist did declare that the law is an ass.

“If the law supposes that,” said Mr Bumble, … “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience — by experience.”

Kwamchetsi Makokha is the programme advisor at Journalists for Justice.