Kenya still needs inclusive political dialogue

Even though the Joint Select Committee on IEBC has reported consensus, there is still a lot of work to be done in order to translate the consensus reached into a programme for free and fair elections next year.

The first issue is the exit of the IEBC commissioners, which had triggered the appointment of the committee and without which an earnest effort to prepare for the next elections cannot really begin. The committee’s recommendation on the exit of the IEBC is couched in generalities. Rather than the committee becoming the forum where decisions on the exit of the IEBC commissioners would be resolved, the report of the committee merely recommends that “a dignified vacation from office of the current commissioners of the Independent Electoral and Boundaries Commission be negotiated and agreed upon in accordance with the law.”

Doubts have since been expressed as to whether the law can actually support a negotiated exit that meets the expectations of the commissioners. The commissioners expect that they will be paid money for the term of office that they would forego by resigning now. However, this does not seem to be something that the law can support.

A source of dismay with the work of the committee was its inability to make findings on the allegations of misconduct that the IEBC has faced, and which were also canvassed before the committee. The committee failed to make findings on this matter because of the expectation that the commissioners would leave office and the fear that adverse findings could upset a negotiated exit.

Other than an expectation of financial compensation, the IEBC commissioners obviously fear the possibility of legal and political reprisals after they leave office, and the report of the committee mentions their concern that leaving office should be without prejudice to their ability to attract future employment in the public sector. The commissioners would also fear the possibility of a criminal prosecution against them.

 If the commissioners receive money on their way out, this would signify closure of their situation and may go towards allaying the fears that the matter may be re-opened in future. Also a financial compensation constitutes an affirmation of their work and is, therefore, a political guarantee that criminal proceedings will not be considered in future.

INDEPENDENT OFFICES

Of course, the operation of the criminal law is the province of independent constitutional offices, including the Director of Public Prosecutions and the courts of law. A recommendation of the committee would not suffice to shield any person from the possibility of prosecution. The question of who is legally immune from prosecution is so important that it is the subject of specific provisions of the Constitution. Only the President enjoys immunity from prosecution and this is also limited to the time while he is in office. And even when in office, the President cannot enjoy immunity from prosecution for an offence under an international treaty which does not allow such immunity. This is the reason why President Uhuru Kenyatta and Deputy President William Ruto were compelled to continue their legal defence for cases that they faced before the International Criminal Court, which had begun when they were not yet in their current offices.

The recommendations of the committee on the replacement of the commissioners privilege the religious sector whose members will get a lion’s share of positions in the selection panel. Other than negating the idea of the country as a secular state, which is an express requirement of the Constitution, the religious sector now divides rather than unifies public opinion, not only because of the reactionary instincts that have characterised their public positions on important public issues, but also because a number of religious leaders are pleased to act as political operatives working for narrow interests.

It is easy to see why there is such a comfortable relationship between political actors and the religious sector, an example of which is why the Jubilee coalition so quickly fronted the retired head of the Anglican Church, Bishop Eliud Wabukhala, as the next head of the IEBC. The condition of state/church relations was confirmed in relation to the ICC cases that the top Jubilee leadership faced until recently. Confronted with deep moral questions of justice for the victims of the post-election violence, the religious leadership sided with the political establishment, abandoning their flock who constituted victims of the violence. It will take a long time before the church recovers from its image as regime religion, playing a role that is not dissimilar to the roles of false prophets covered in holy religious text.

Political actors implicitly know that the religious leadership has their back, and that they can easily control the actions of the religious sector when serving in the selection panel. Religious leaders are preferable because they happily agree to serve as proxies of the politicians.

The lack of diversity in the selection panel means that the process of appointing new commissioners will be highly controlled. The country may end up with another set of commissioners who, from the very beginning, fail the test of independence.

There are wider political issues that the committee could not have handled. For example, while the IEBC is the only actor in the ring of election management, it has relationships with players outside that ring, for example national security actors, some of which affect the work of the IEBC. It is incongruous that no occasion ever arises when these relationships are examined.

The work of the committee was at best a stop-gap measure. The country still needs the inclusive political dialogue where wider issues can be discussed.

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