Government has no business protecting IEBC
What you need to know:
- Nobody in his or her right senses would deny that IEBC has let the country down.
- Cord bitterly disputes IEBC’s credibility and demands that IEBC's commissioners be ejected immediately for being part of a BEBC (B stands for biased).
- Jubilee, on the other hand, insists that protest is not the constitutional way to remove the commissioners from office.
Violence breeds more violence, never peace. We risk replacing every vote with a gun when people use violence in a democratic space for political gain.
We have only 437 days to save Kenya but we are reluctant to learn our lesson. Do the 3,071 days that have passed since the country almost broke apart seem too far now, perhaps too unreal? Does the post-election violence look exaggerated?
We are unable to see that the current violent stalemate between the government and the opposition over the IEBC is just a breeding lab for crueller violence in 2017, and the press is not helping the situation.
It is naïve to turn a blind eye to the deep political rift between the government and the opposition.
Some argue that the trouble was self-inflicted by the “winner-takes-it-all” principle embedded in the Constitution. While there is some sense in this suggestion, to make all contenders winners by default would be an expensive, unsustainable and superficial quick fit.
This solution only works for the proud, egotistic, self-centred politician.
We wanted a democracy but a system where all win is not a democracy, which is necessarily made up of winners and losers. Certainly, magnanimous leaders can decide to co-opt their opponents, but no sustainable democracy will take such a way out as a permanent solution.
We voted overwhelmingly for the Constitution we have, as it is designed, with all its risks and perils. We insulted religious leaders when they gathered up against it, and one of the greatest ironies in recent times is that the political flag bearer against this Constitution is now one of its greatest beneficiaries.
So, what has changed? Why has the Constitution become Kenya’s enemy all of a sudden? Why do we resort to violence while not knowing or understanding its ultimate consequences?
Both government and the opposition have taken a misadvised stand on the Independent Electoral and Boundaries Commission, which was designed to be an independent body as its name suggests. Independence is a delicate concept, a mix of efficiency and transparency.
Nobody in his or her right senses would deny that the IEBC has let the country down. In nearly every election they have conducted, there have been serious questions of integrity and transparency. This was stated by the Supreme Court in the complicated, confusing presidential election decision.
TERRIBLE, PROUD LOSERS
Every single loser since the IEBC came into being has complained bitterly, sometimes the Jubilee Alliance or a section of it, and sometimes Cord or its associates. Whether in Malindi, Kericho or Nairobi there have been serious irregularities they could not answer satisfactorily.
So we have a problem worth looking into. Either we are terrible, proud losers or the IEBC has lost its legitimacy as an independent body and become EBC, or perhaps a mixture of both terrible pride and lack of independence.
At dispute is the credibility of the IEBC as presently constituted and its ability to conduct free and fair elections next year. The first step is to look at the legal, legitimate solutions we have before us and make use of those before throwing the first stone.
Cord bitterly disputes the IEBC’s credibility and demands that its commissioners be ejected immediately for being part of a BEBC (B stands for biased).
The Jubilee government, on the other hand, has zealously and jealously protected the IEBC in a manner that raises eyebrows. Why would the government defend the IEBC so furiously?
Cord maintains that its stance is justified under the Constitution. In actual fact, Article 37 of the Constitution provides that:
Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
Cord’s petition calls for the removal of the crop of IEBC commissioners. Whether their petitions and protests have been peaceful is another matter. Clearly, they have mostly ended up with broken limbs from running battles.
'SIGNIFICANT DENT'
Jubilee, on the other hand, insists that protest is not the constitutional way to remove the commissioners from office. They refer to Article 251(2) of the Constitution as their basis, which provides for the removal of a member of a commission or the holder of an independent office. The process is straightforward:
a person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified may present a petition to the National Assembly setting out the alleged facts constituting that ground.
The grounds for removal include:
Serious violation of this Constitution or any other law, including a contravention of Chapter Six;
Gross misconduct, whether in the performance of the member’s or office holder’s functions or otherwise;
Physical or mental incapacity to perform the functions of office;
Incompetence; or
Bankruptcy.
Both opposing positions have a foundation in the Constitution and it would appear there is no middle ground here. Fortunately, there is.
The most important asset for an independent commission or office is its independence and appearance of impartiality, its image of fairness and transparency. The IEBC, as it stands or sits, has lost this.
The jealous protection it has entertained from the government is a significant dent on its appearance of independence.
The Jubilee government's defence of the IEBC as currently constituted appears to indicate that this crop of commissioners is the secret to Jubilee’s success in the next general election. This position is misadvised. The IEBC should be left to prove itself, on its own.
PARLIAMENTARY VETTING
If there is something that will play in Jubilee’s favour in 2017, it is definitely a legitimate electoral body. Polls give a high approval rating to incumbents, and they should need and want to win in a peaceful and credible manner. There is nothing worse than winning withoutcredibility.
The increasing number of casualties from the ongoing Cord protests should signal a change of tactics. The anti-Cord brigade will see this as a sign of "weakness" and say that this would amount to letting Cord get away with whatever they want, as if anytime they disagree they will mess up the country and push for government change.
But this is not necessarily true. The real strength of good political leaders lies in knowing where to hold and where to concede, where to tighten and loosen. The more the government protects the IEBC, the less independent the IEBC becomes.
This is not in the interest of the government, or even in the interest of the IEBC itself. They have to recover that lost “I” in their name, and only an objective parliamentary vetting will achieve that.
Last week, it was embarrassing for Cord to send condolences for one Boniface Manono only for him to appear later, very much alive. This week, unfortunately, there is no cause for humour. A number of deaths and injuries have occurred from particular instances of violence meted out by the police and other security agencies.
REPEL ALLIES
Whether directly or indirectly, many businesses around major cities and towns are undoubtedly suffering due to interruptions by these protests and the violent responses to them.
The government cannot escape blame for the loss of lives and the injuries caused during the suppression of Cord protests around the country. As it is, the violent measures seem to spark the ire of even more protesters.
Last Monday's protests spread to a total of nine counties, including Meru County, which, at the very least, would have been regarded as neutral to the Cord-IEBC conflict.
The violence meted out against the protesters, regardless of whether the protesters engaged in destruction or not, cannot be expected to leave the rest of the electorate indifferent. Violence is the perfect way to repel allies and stir up one’s foes. There is absolutely nothing to be gained apart from bitterness.
Sometimes, unexpected reactions will cause the right result. Jubilee and Cord have barely 90 days to reflect and come up with a solution to save Kenya from the dark, violent clouds looming over our heads.
This is the time for leaders to think outside the usual petty political box, put the law before the stones, and reach an agreement for the good of the nation.
Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi
