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Removing IEBC’s bosses is a legal and political undertaking

Saturday May 28 2016

Independent Electoral and Boundaries Commission (IEBC) chairperson Isaack Hassan (second right) addresses the media at their offices on May 5, 2016. He said that the commission is ready to oversee the next General Elections and no commissioner is going to resign. He is flanked by the IEBC CEO Ezra Chiloba (second left), Commissioners Kule Galma Godana (left) and Thomas Letangule (right). PHOTO | FILE | NATION MEDIA GROUP

Independent Electoral and Boundaries Commission (IEBC) chairperson Isaack Hassan (second right) addresses the media at their offices on May 5, 2016. He said that the commission is ready to oversee the next General Elections and no commissioner is going to resign. He is flanked by the IEBC CEO Ezra Chiloba (second left), Commissioners Kule Galma Godana (left) and Thomas Letangule (right). PHOTO | FILE | NATION MEDIA GROUP 

By MAINA KIAI
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It is the height of irony that the people who have shown the most contempt for the Constitution are the ones hiding behind it on the question of the IEBC.

And even on that they are dead wrong: There is nothing in the Constitution that suggests that using the freedom of assembly to force public servants out of office is unconstitutional.

Let’s be clear: Reforming the IEBC, starting with the removal of the commissioners and senior staff can be done in many ways, including public pressure to force them to resign in the public interest, or to force a political agreement that forces them out.

Prof Yash Pal Ghai — a real and recognised professor — has publicly enumerated the many violations of the Constitution by Mr Uhuru Kenyatta since 2013.

Some so grave, that in a “normal” society Mr Kenyatta could have been impeached long ago, including for ignoring court orders as he deems fit.

We are all familiar with his political pressure that led to the resignation of Mr Michael Gichangi, aren’t we? Have we forgotten the enormous pressure put on former Police Inspector-General David Kimaiyo, who had security of tenure and whose removal process was similar to the IEBC commissioners? Or the three former commissioners of the anti-corruption commission who unceremoniously “resigned” under pressure from Mr Kenyatta and his henchmen?

What the opposition is asking for is simple and constitutional, despite the human rights deficient reasoning from the chair of the Kenya National Commission on Human Rights.

The removal of the IEBC commissioners is both legal and political. They can resign in the public interest, or Parliament can force them out after the majority therein agree. This is what Cord is working towards and there is nothing wrong with using peaceful protests to achieve that goal.

And again, for those unclear (like the KNCHR chairperson) about human rights law, you do not blame the victims for the violence meted against them.

You do not attribute violence to organisers when agent provocateurs and thugs take advantage of poor policing to cause mayhem.

But the more worrying question is why Mr Kenyatta is so hardline on this matter. It is clear that keeping the current IEBC in the current environment is harmful to credible elections.

Any result in his favour that this IEBC declares, after all these events, will be marred and illegitimate. So why persist? I believe that the answer lies partly in geography.

MILITARY REGIMES

Some years back, I took courses in democracy and political systems at Stanford University. One of the professors there told us that geography plays a role in determining political systems and democracy. It was an obvious point but remarkable when articulated this way.

In the 1960/70s, military regimes and one-party systems were the rage in Africa.

At the same time, Latin America was besieged by military and fascist regimes almost uniformly.

Today, Latin America is turning rightwing again except for Cuba and Venezuela, though one could argue that their form of “socialism” is a form of fascism.

Similarly Europe and the West is moving rightwards, with Austria just escaping the first fascist president in Europe since Hitler and Mussolini.

Closer home, this region is undergoing a “president-for- life” trend, after the leaders of Uganda, Burundi, Rwanda and DR Congo all decided against term limits, making their decision public during their “last term” before changing constitutions or process. Of course, the normal propaganda of the “will of the people” was fronted. And there is Ethiopia, which elected the ruling party 100 per cent.

So, given this hardline approach by Mr Kenyatta and the circumstances in our region, could it be that the refusal to have a credible election is the prelude to changing the Constitution to remove term limits after this biased IEBC declares him the winner in 2017?

There is, of course, the additional incentive of not wanting to lose immunity after leaving office, which as Daniel arap Moi and Charles Taylor can attest, can lead to some humiliating and painful moments.