Reform of election laws will secure the October 26 re-run poll

IEBC Chairman Wafula Chebukati leaves County Hall, Nairobi, on October 5, 2017 after a deliberation with the Select committee on electoral laws. PHOTO | EVANS HABIL | NATION MEDIA GROUP 

What you need to know:

  • Its power elite is sharply divided between those pushing for “democratic competition” and those clamouring for “consensus” and executive power-sharing.
  • Election Observers, foreign diplomats and the opposition have called on the Jubilee Government to drop the proposals.
  • The proposed laws seek to empower the IEBC to be accountable by informing the public in a timely manner of the presidential election results.

Kenya is on the cusp of a serious clash of norms, mirroring the “clash of civilisations” on the global scene.

Its power elite is sharply divided between those pushing for “democratic competition” and those clamouring for “consensus” and executive power-sharing.

The former are pushing for the reform of the extant electoral laws to create a level playing field and eliminate ambiguities and irregularities that led to the overturning of the August 8, 2017 presidential election result. The other have gone to the streets in protest to force consensus or power-sharing.

This divide is deeply ideological. It reflects the normative crisis of liberal democracy. In a statement issued on October 3, 2017, the European Union Observer mission in Kenya 2017 called on Kenya’s political leaders to demonstrate commitment to democratic electoral competition and institutions.

ELECTION LAWS

At the heart of this clash of norms are the proposed Election Laws (Amendment) Bills 2017 now before the Senate and the National Assembly. 

Election Observers, foreign diplomats and the opposition have called on the Jubilee Government to drop the proposals.

However, in the corridors of Jubilee power, this is viewed as calling on President Uhuru Kenyatta to merrily sing his way to the guillotine.

The proposed laws are considered non-negotiable and as the only way to avert annulment of the re-run election by the Supreme Court judges concerned with processes rather than the will of the people. 

The debate on the Bills is reminiscent of the acrimonious December 2014 Security (Amendment) laws, which have reduced the threat of terrorism.

The proposed amendments target three laws – the Independent Electoral and Boundaries Commission Act No 9 of 2011; the Elections Act No 24 of 2011; and the Election Offences Act No 37 of 2016. 

REFORMS

Critics point out that the reforms of the electoral laws are potentially polarising, erode the predictability and quality of the law, carry implementation challenges, are irregular and not based on “good practice.”

However, framing the amendments is a desire by the Jubilee Government to secure the elections as a non-negotiable agenda whose moral basis is to protect lives, property and entrench democracy, good governance, and rule of law in line with the international doctrine of the Responsibility to Protect (R2P).

The amendments are seen as absolutely crucial before the October 26 re-run. Kenya’s situation is radically new after the Supreme Court overturned the August 8 election result. No Supreme Court has annulled elections in any of the “mature” democracies of the West!

Collectively, the Bill reflects the Jubilee Government’s normative response to the impasse in the wake of the historic Supreme Court ruling that overturned President Uhuru Kenyatta’s victory.

The reforms target three sets of governance and legal issues to streamline the electoral system.

The first set of amendments targets administrative issues. One, they seek to streamline administrative processes by removing ambiguities and providing absolute clarity on the determination, declaration and transmission of results.

AMENDED LAWS

Besides making the transmission of results electronically and manually concurrent, the amended laws make manually tallied results the authority where discrepancies between the electronically and manually transmitted results arise.

Two, the proposed laws seek to empower the IEBC to be accountable by informing the public in a timely manner of the presidential election results. Under the amended law, only results announced at the polling station form the basis of declaration of results. The amended law will also give IEBC a necessary sway to regulate and deploy election-related technologies without legal impediments.

Three, the proposals seek to prevent presiding or returning officers of IEBC from undermining the integrity of future elections. To this end, the proposed laws prescribe punishment for those officers who knowingly fail or refuse to sign or complete mandatory documents or wilfully submit an incomplete, falsifies or alters an election document.

Beyond the administrative issues, the amendments target the likely spin-offs of re-run politics. Notably, the September 1 Supreme Court ruling re-focused attention on  the need to clarify the meaning and procedures of a fresh election and who the candidates in a re-run are.

DEMOCRACY

Further, the laws need to clarify what should happen in the event that a candidate in the fresh election formally writes to IEBC withdrawing from the election.

Finally, the proposed amendments seek to institutionalise the crucial office of the Chairperson of the Commission and to make it safe for Kenya’s democracy. Over the years, Kenya’s electoral regime tended to progressively personalise rather than institutionalise the top office of the electoral body.

This is a legacy of the contested history of Kenya’s election management system harkening back to the one-party era and the post-2007 chaos.

The person and the office of the chairperson have become one and same thing, posing serious risks to the management of elections.

The requirement that the occupant of the office of the chairperson must have legal qualification and experience is limited and arbitrary.

EQUITY

The proposed amendments have sought to expand and democratise the criteria of merits to include a wider array of professions, disciplines and skills to promote inclusivity, equity and equality.

The reforms also seek to minimise the dire risk that the exclusive powers of the chairperson pose on declaration of future election results. This risk has become a real concern after September 1. Today, if the proverbial “lightning” struck the chairperson, this would trigger an unprecedented crisis.

IEBC is the only body under the new constitution where, in the absence of the chairperson, the vice-chairperson or a temporary chairperson elected by the commissioners cannot conduct lawful business. In the past, this was circumvented by having the deputy as an experienced lawyer.

Importantly, if the holder of the office dies, resigns, becomes incapacitated or otherwise ceases to hold office, this can put elections in serious jeopardy owing to a protected succession process that would set in.

If passed, the proposed amendments to electoral laws will reassert the norm of “democratic competition” and secure future elections.

Prof Kagwanja is a former Government Adviser and currently heads the Africa Policy Institute