To hold elections in 2017, many urgent things must go right

What you need to know:

  • The Election Laws (Amendment) Act is a complicated octopus that touches on practically every election process in Kenya.
  • Within seven days of its constitution, the selection panel will begin to advertise vacant positions in the IEBC and invite qualified people to apply.
  • The timelines set out in the new law will be practically impossible to meet, and the greater the delay the greater the impossibility.

Some miracles happen only in Kenya. They include Pastor Deya’s miracle babies, Goldenberg’s massive gold "exports" from a country with very small amounts of it and winning Olympic medals without kit or money.

A new miracle could yet happen, and it will be holding an election in 2017. A few days ago, President Kenyatta signed into law the Kenya Regiment (Territorial Force) (Repeal) Bill, the Water Bill, the Civil Aviation (Amendment) Bill, the National Government Constituency Development Fund (Amendment) Bill and the Election Laws (Amendment) Bill.

The Election Laws (Amendment) Act is a complicated octopus that touches on practically every election process in Kenya. It deals with the appointment of new commissioners, the voter register, procurement, results and so on.

Credible, fair elections are not a tantrum of immature societies but a pre-requisite for true democratic space. This sometimes annoying equality at the ballot box makes democracy very attractive to modern society.

However, credible, free and fair elections are not sufficient. The pillar and foundation of democratic sustainability is education, and no democracy can exist without it. After all democracy is the rule of the majority and, as I have said before, the majority is not always right.

If a hundred fools are asked to make a decision, the fact that they decide by majority vote does not necessarily make their decision wise. On the contrary, it could turn out to be great foolishness.

This is how ignorance turns democracy into "demo-crazy", where political decisions are inconsistent and contradictory.

BARELY 10 MONTHS

This state of affairs is not unique to Kenya, but happens everywhere. America, our Western world’s modern democratic icon, is currently undergoing a painful identity crisis.

Democracy must count on two key elements: voter education and vote accuracy. Here I will focus on vote accuracy.

Credible election results are premised on two ingredients, legitimacy and accuracy. Parliament passed some key amendments to election laws and the President assented to them. These changes were aimed at improving legitimacy and injected a perception of legitimacy into the IEBC.

But, at the same time, these changes may have compromised accuracy, given that we are rushing to meet deadlines.

The new appointments may bring some respite to the opposition parties, but the scary question needs to be answered. Is this legitimacy sustainable? Will the new commissioners have the expertise and experience to guide such a delicate process? Is it possible to organise an election in Kenya in barely 10 months?

The Election Laws (Amendment) Act sets out the appointment of the chairperson and members of the Commission. The selection panel which will be in charge of appointing IEBC commissioners is meant to be constituted at least six months before the lapse of the term of the chairperson or a member of the commission, or within fourteen days of the declaration of a vacancy in the office of the chairperson or a member of the Commission.

This means the current IEBC commissioners should have resigned Friday, and before they resigned, their contractual rights should have been negotiated and resolved.

Their security of tenure was tampered with, and any violation of those pre-existing rights could complicate matters and delay the process.

In the current scenario, according to Section 38 of the Election Laws (Amendment) Act, once a vacancy has been declared, the President has 14 days to appoint the selection panel.  

Within seven days of its constitution, the selection panel will begin to advertise vacant positions in the IEBC and invite qualified people to apply. It is not clear how long this process will take.

NECESSARY TECHNOLOGY

It all depends on how many people apply and how fast the panel does its work; it may actually take months.

If the Commission is not properly constituted, other timelines as stipulated in the Act will not be met, which could throw the whole process into disarray.

For example, the verification of the voter’s register should be done at least ninety days before the Election. If we consider the 8 August as the election date, this exercise must start by May 2017.

Section 17 of the Act says that the Commission is to put in place an electronic electoral system that will be used for voter registration, voter identification and electronic transmission of results.

Section 44, as amended by Section 17 of the new Act, requires this technology to be procured and installed at least eight months before an election and tested and verified six months before the election.

This means the new IEBC Commissioners must have been selected and appointed, and must have procured the necessary technology by December 2016. All this is in a bid to ensure the country is able to have elections by August 8, 2017.

The timelines set out in the new law will be practically impossible to meet, and the greater the delay the greater the impossibility.

It is urgent, for the good of Kenya, for respect to the Constitution and in all fairness, for the expectations of every citizen, that the selection and appointment of new Commissioners be carried out with utmost urgency.

DEMOCRACY FRUSTRATED

We have already missed Phase I of voter registration. We are close to missing Phase II of voter registration. We also need to consider the fact that the 2013 voter register was an inaccurate fiasco, and both government and opposition attested to this fact.

The massive voter registration in early 2017 will be a mammoth task. The pre-election deadlines established by the IEBC have already expired.

Mapping out stations, training officers, and conducting voter registration in the Diaspora is supposed to commence in two weeks’ time. Procurement and distribution of electoral material and logistics is due to start in two months’ time.  Are we there yet?

Ezra Chiloba and his team seem to be working around the clock to meet deadlines. Unless the commissioners are in place in the next four weeks the efforts of Ezra and his team will go to waste. The Constitution will not be fulfilled and democracy will be frustrated.

We could still make it. All commissioners are urgently needed on board and we pray they do not fight among themselves. We also pray they do not tamper with procurement processes because it will only take one rogue commissioner to throw the whole process into disarray.

If we make it, if this miracle happens, it will be a photo finish. 

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi