A trend is emerging that after a General Election the electoral agency must somehow get into trouble, with calls to reform or even disband it.
But is the ‘bungling’ of elections the culprit in the Independent Electoral and Boundaries Commission’s (IEBC) woes?
It cannot be that both the eminent team of the select committees that interview commissioners and Parliament have a penchant to appoint the inept.
It cannot be that all commissioners look bad after only six months of appointment. The current commission, which has also been threatened with dissolution, is the fourth in only nine years since the transitional Interim Independent Electoral Commission (IIEC) took over after the disbandment of the Samuel Kivuitu-led Electoral Commission of Kenya (ECK) in December 2008.
Changing commissioners has been expensive. Millions of shillings are paid for the “honourable exits” while the new team is greeted with murmurs of discontent, suspicion and disappointment.
The first casualty — and the real cause for the vicious cycle — is experience. It takes time to learn and reform institutions — even more at a high-stake, politicised outfit like the IEBC.
The IIEC conducted several elections and a referendum within 10 months. Since the law had provisions for retention of experience, commissioner Yusuf Nzibo and chairman Issack Hassan transitioned to the IEBC. The Hassan-led team faced accusations after the 2013 polls and were sent home with a handsome “negotiated settlement” in 2016 and the current IEBC hired.
Invaluable time is also lost in these changes. For one year after the ECK, the country had no electoral body.
The current commissioners are well versed with elections. The current situation also provides a perfect opportunity to stagger recruitment of commissioners. They should serve on a six-year non-renewable contract like the ones currently in office. It means they will stay longer, for continuity and institutional memory.
If a poll manager is found culpable of a misdeed, can’t they be made answerable individually? It is not possible to build professionalism and integrity among a people who live in a perpetual state of uncertainty and blanket condemnation.
The IEBC’s problems, if not urgently addressed, could negatively affect the more emotive and polarising boundary delimitation and even the next polls. In short, failure could already be eminent.
The second possible culprit is the electoral system: The winner-takes-it-all presidential system, where the second-best candidate has no leadership role despite garnering many votes. It raises the stakes in elections and fuels un merited petitions.
It is time to change the law for a parliamentary or hybrid system where political parties, rather than individuals, contest the elections. This is the model adopted by a number of countries — such as Israel and South Africa — where people vote for parties and the leaders are picked from a pre-established list of nominees. It makes parties strong and reduces the cost of elections.
The third precipitating factor to poor performance and an attendant call for disbandment is the application of the electoral law. When we are not misinterpreting the law, we are manipulating it.
There has been an enduring debate on whether or not the IEBC is properly constituted, with a quorum.
Whereas the Election Act places a minimum of five members at every IEBC meeting, Article 250 (1) of the Constitution provides that “Each commission shall consist of at least three, but not more than nine, members”. Section 7(3) of the IEBC Act 2011 provides that “The commission shall be properly constituted notwithstanding a vacancy in its membership”.
There is a need to harmonise the seemingly conflicting laws. The law could define quorum by percentages rather than numbers, which would remove the headache encountered when a commissioner(s) resigns.
The electoral bodies of India and New Zealand have three commissioners while Canada has had one since 1920. Other Kenyan constitutional commissions have fewer commissioners than IEBC.
The lack of trust in IEBC has nothing to do with the number or composition, robustness of technology or stringiness of the laws. Our unrealistic expectations, gerrymandering and political culture hold key to its election management woes.
Mr Ngeno, a political science lecturer, worked for the defunct ECK. [email protected]