Bill a hatchet job to provide legal cover for political strategy

The emergence of the Election Laws (Amendment) Bill has crystallised the fact that Kenya has now fallen into a deep political crisis that needs immediate intervention.

Supported by the Jubilee side in both Houses of Parliament, and explained as necessary for addressing the effects of the Supreme Court judgment that annulled the presidential election held in August, the bill seeks to make institutional changes at the Independent Electoral and Boundaries Commission, and also to change laws governing elections.

The processing of the bill replicates the handling, in late 2016, of the Election Laws (Amendment) Bill, a legislative process which Jubilee, relying on its healthy majority in the two Houses of Parliament, forced through without reference to the opposition.

There followed much political tension around the country, amid unruly scenes at the National Assembly, where opposition members had staged what was ultimately a futile attempt to resist the enactment of the bill.

DEBATE

At the time, the government took the unusual step of cordoning off and preventing public access to the Houses of Parliament where debate on the bill was taking place, worsening the already very bad optics that the occasion presented.

It seems that the Jubilee side, whose majority in both Houses of Parliament was enhanced by the last election, will stage a repeat of what it did in 2016.

This time round, the opposition has reacted differently and, rather than staging a fight against the bill, they have chosen to walk away, thus allowing Jubilee a free hand to do as it pleases.

Like last time, the publication period for the bill was shortened. Instead of allowing the standard 14 days during which a bill remains in publication before it is tabled in Parliament, both Houses resolved to shorten the period, to allow the immediate tabling of the bill.

COMMITTEE

In what has been presented as an attempt to allow the participation of the opposition, and also the public, in the processing of the bill, the Houses of Parliament announced the formation of a committee that will remain in place to accept representations from the public on the content of the bill. The opposition has been invited to provide representations to the ad hoc committee.

The effect of this bill on the country’s politics has been immediate. The Nasa side has cancelled further participation in face-to-face talks with Jubilee, which the IEBC had initiated, demanding that the bill be first withdrawn.

This state of affairs is particularly unhelpful for the IEBC as one of the objectives of the bill is to alter the manner in which the fresh presidential election will be run. Initially slated for October 17, the IEBC has already had to push back the fresh election, after that date became too close to allow necessary preparations to be accomplished.

The fresh date, October 26, is almost at the end of the 60-day period that the Constitution allows for the holding of the fresh election. There is, therefore, no room for delaying the election further, even if the new date becomes unworkable.

CONTROVERSY

The emergence of this bill, and the accompanying controversy, risks causing further delays to the IEBC as it prepares for the fresh election, in a context where there is already little time left for mistakes.

Further, coming so close to the election in question, and aimed at affecting the manner in which the election is to be conducted, the bill introduces practical uncertainties at the IEBC as to nature of the legal regime that will ultimately apply to the fresh election.

The bill also proposes institutional changes to the IEBC, altering the qualifications that the chair must hold, lowering the quorum for meetings from five to a simple majority, and also making it possible for the vice-chair, or in her absence, any other commissioner, to act as chair of the commission.

The naked meaning of the bill is that, once it is enacted, the four Jubilee-leaning commissioners who currently lack the quorum to get their decisions through the plenary, will now constitute a quorum, and will also nullify the role of the remaining three.

REPLACEMENT

Since the IEBC chair, Wanyonyi Chebukati, is not one of the four, he will be one of those to be nullified. At that point, he will have to consider resigning from the IEBC. Currently, Chebukati is irreplaceable, as none of the other commissioners is qualified for appointment as a judge of the Supreme Court, a requirement of the law.

By doing away with the requirement for legal qualifications, the amendments are laying the groundwork for Chebukati’s replacement.

In effect, the amendments will hand over the IEBC to the four Jubilee-leaning commissioners and will present Chebukati with the options of joining them or leaving the commission.

Although the IEBC is the supposed beneficiary, or at least implementer, of the electoral process amendments, its views were not sought before the amendments were presented.

HATCHET JOB

Parliament should legislate neutrally, avoiding the use of its legislative power to target individuals for punishment. A law that targets individuals for sanction without a court trial is called a writ of attainder. It is an unconstitutional way of exercising legislative authority.

These amendments are no more than a hatchet job seeking to provide legal cover for a political strategy that will result in the removal or sidelining of pre-identified individuals within the IEBC leadership, while also paving the way for political favourites to take their place, if this should become necessary.

In that regard, this bill is a writ of attainder against Chebukati, and there cannot be a more meddlesome way of treating the IEBC.

Up to this point, it has been possible for Jubilee to conceal its hand behind supportive commissioners and staff members at the IEBC. With this bill, Jubilee has now shown its hand, and has made it clear that decisions at the IEBC must be to its liking, or there will be changes in the leadership.

These amendments only make it clear that Kenya’s attempt at peaceful political change is failing fast. The possibility of credible elections on October 26 is ebbing away and, with it, chances of avoiding violence.

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