Parliament has reinforced impunity in election management

With information filtering in about a number of agreements reached by the Joint Parliamentary Committee on Electoral Reforms, it is not too early to begin taking stock of what the process has achieved so far.

The most significant achievement is the reported agreement that the current members of the Independent Electoral and Boundaries Commission (IEBC) will vacate office and that another set of commissioners will be appointed in their place. The demand that the current commissioners leave office was the reason why a crisis arose in relation to the IEBC in the first place. With the official opposition, Cord, demanding that the commissioners resign, the ruling Jubilee coalition, however, came on their side and insisted that the Constitution had to be complied with in processing any demands for the removal of the commissioners. There arose a major political crisis when, to press their demands, the opposition resorted to weekly street protests, to which police reacted with shocking brutality.

The fact that the parliamentary process provided a constructive forum through which Jubilee and Cord could engage, away from a mutually-hurting stalemate, was already a win for the country. Having led to agreement on a mechanism for the removal and replacement of the current IEBC commissioners, the parliamentary process has already made a tangible achievement for the country.

However, the process has not been without major shortcomings. To begin with, its design as a Jubilee/Cord negotiation had the effect of alienating all other groups, including political parties, which should reasonably have had a say on the fate of the IEBC. Further, the decision to situate the mediation process in Parliament also had an alienating effect on players that have no access to Parliament who were reduced to only having whatever say they were allowed, which left Jubilee and Cord to have their way.

With the next elections now only 12 months away, and with preparations for those elections tied to resolving the fate of the IEBC, the parliamentary negotiations have had to be rushed just to ensure that the deck is cleared for the preparations to proceed. While understandable in the circumstances, the need to rush did not provide an ideal situation for addressing the complex problems of the IEBC. I argued in this column on January 18, 2015 that “deep within Jubilee, there must be a quiet recognition that some kind of dialogue may become inevitable before the elections in 2017, as would provide political leadership on the management of those elections.”

‘TIGHT CONTROL’

I predicted that “Jubilee will keep a tight control on time, ensuring that any concessions made come as late as possible, at a time when these will carry little threat against Jubilee and when there will be little leverage left for the opposition.”

This is exactly what has happened. The four-year intransigency on the IEBC question has, in truth, been a deliberate strategy on the part of Jubilee to ensure, firstly, that the secrets of the 2013 elections which the IEBC has done so well in protecting would remain buried even after they leave office and, secondly, that it retained control of the outcome of any political negotiations that might be necessary around the IEBC.

One of the consequences of the delays that have occurred in addressing the IEBC question is that it provided the commissioners themselves with the leverage to hold the country at ransom.

Recognising that the country is now desperate to get on with preparations for the next elections and that those preparations could proceed while they remained in office, the IEBC commissioners dug in and demanded not only a safe passage out of office but also some money as well.

While, under different circumstances, it would have been possible to demonstrate the obvious failings of these commissioners which would disentitle them to a safe exit, the parliamentary process, having been starved of time, could simply not afford to go down this route. With all leverage in demanding accountability against IEBC commissioners now gone, the country has been left in a situation where it will have to pay them instead.

Other than the 2002 elections, all other multi-party elections in the country have been managed in a manner that did not meet universal public confidence. Other than the removal of the bungling Electoral Commission of Kenya after the 2007 elections, there has been little attempt towards accountability against commissioners who mismanaged elections.

While the removal of the current IEBC commissioners was necessary, it is, however, insufficient to guarantee that the 2017 elections will be free and fair. The fact that the commissioners have been shielded from accountability is already a message to whoever will be appointed in their place that the political system will protect them in their turn if they deliver elections which are to the liking of those in power.

In the end, the parliamentary process is no more than a burial committee. When people assemble to bury their dead, they do so unconditionally.

They do not first ask whether or not the dead were good people. In sending the IEBC home without asking any questions, the country is acting in the same way, and guarantees that the 2013 elections that the commissioners mismanaged, and the outstanding questions about the “Chickengate scandal”, are now history.

As a result, Kenya is facing another polarised election without the benefit of a historical reflection or a clear political commitment to electoral reforms. While the parliamentary process may deliver on the need to replace the IEBC commissioners, it is also reinforcing the country’s history of impunity in the management of elections.

[email protected]