IEBC, police, Judiciary must do the right thing to prevent election violence

IEBC Chairman Wafula Chebukati (left) and Inspector General of Police Joseph Boinnet in Nairobi on May 9, 2017. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • It is decision time for the Independent Electoral and Boundaries Commission, the police and the Judiciary.
  • Peace after August 7 depends on whether they do the right thing now.

Party nominations are over and Kenya has officially entered its bi-decennial season of madness.

The election is two months away and three candidates for county assembly seats have been murdered and their killers still at large. It will get worse.

This deadliness, I fear, comes from the perverse incentives built into our politics by the oodles of cash that the Salaries and Remuneration Commission, SRC, allows politicians to pay themselves. It is inevitable: if you pay a school teacher 300 dollars a month; a registered nurse 400 dollars and a semi-literate assemblyman 3000 dollars, local elections become deadly Mexican standoffs, like those in the old Westerns.

People will kill for power and money, meaning that the system is now primed for violence. However, violence is not inevitable. To make violence less probable the Independent Electoral and Boundaries Commission, the police and the Judiciary, need to do more.

First the IEBC Mr Wafula Chebukati, the chair, has so far made no catastrophic mistakes. That is not enough: He can seem casual at times, giving the impression that he has not internalised just how grave his job is. His commission has made too many missteps to give comfort to skeptics. He lacks gravitas and seems - mistakenly in my view- keener to convince us that he can deliver a competent election rather than to inspire voters to trust that he can deliver a credible one.

ROUTINELY UNMANNED

He often claims to be punctilious in obeying the law but is routinely unmanned by the many High Court decisions that stop IEBC for breaking the law. Even when he does the right thing, like the recent reshuffling and reorganising of polling staff, he does not consult, raising suspicions that his intentions are malign.

In short, the IEBC chair has not done all he can to build the credibility of the Commission. This election promises to be chaotic no matter what Mr Chebukati does. Voters must trust him now if he expects them to forgive IEBC its failures in August.

Mr Chebukati is faltering because he has forgotten sound advice that speakers Justin Muturi of the National Assembly and Ekwee Ethuro of the Senate gave him in January. Credibility, they reminded him, is his only real asset. Past electoral jinxes were spawned by opaque decision-making; to restore public confidence in the IEBC Mr. Chebukati must embrace transparency.

They advised him to be forthcoming when in problems and to consult with political parties regularly, graciously warning him not give politicians any excuse to doubt him. Since that advice was given, the IEBC has been as accident-prone as other defunct commissions, stumped by needless lawsuits.

WORRY WATCHERS

Two things will worry election watchers about this: one, the frequency with which the IEBC runs into legal problems and two, how often the court finds against the commission. Till this week, IEBC had not found a company to print ballot papers, stopped by the Public Procurement Administrative Review Board, because of irregularities. The High Court has over-ruled the Board but this was merely one case in a string of many such.

In February, the court quashed a tender for the supply of election materials. At about the same time, another court extended the period for mass voter registration, over IEBC objections. It is probable that if the IEBC had consulted more and opened its decision-making to scrutiny - as the law requires it to- some of these cases won’t have gone to court.

It is early days yet but time is running out for IEBC to communicate effectively. This election will be a logistician’s nightmare. The number of contestants means that ballot books will be too bulky, raising management and transport problems.

Polling stations will be crawling with agents, both for party candidates and for the thousands of independents. In some stations, the agents could be as many as the voters. The voting time allotted per voter could be twice as long as 2013, meaning that polls must stay open longer than they have ever been.

HUNGRY VOTERS

That brings into play the frightful risks of securing ballots at night and managing impatient, hungry even unruly voters. Put even integrity risks aside, what is the IEBC doing to forestall logistical failures?

Now turn to the police. They, too, are assailed by the very gremlins that haunt the IEBC: credibility, neutrality and competence. This week the police said that they had launched a plan to prevent violence.

Two measures will go with the plan: one, a system to track politicians known to provoke violence and two, a conference to refine a joint security strategy to curb violence at election time. Many Kenyans rarely believe what the police say and few will trust these new efforts, suspecting them to be blame-shifting PR stunts should things go wrong in August.

As with the IEBC, it is credibility and neutrality that the police need to work on, not new ‘special operations’. Investigations into violence since 1992 have been categorical: the police play politics during elections and are often complicit in the violence in such elections.

One example: The Commission of Inquiry into Post-Election Violence, in 2008, accused the police of being blatantly partisan. The Commissioner of Police even ordered some perpetrators released from custody and not one case involving the police was investigated.

ADMINISTRATION POLICE

Many police officers were caught electioneering. Some 1,600 officers from the Administration Police Service went overboard. They wore plainclothes, acted as party agents or played thugs and disrupted elections in opposition areas. None of this was new: CIPEV noted that this complicity was only the latest iteration of police impunity going back to the electoral violence of 1992 and 1998.

The issue now is not what security plans the police have lined up for August, it is what actions they take to convince the public, especially in opposition areas, that they can be politically neutral, given their sorry history of political playmaking. Recent examples of police bias against the Opposition don’t help.

After years of impunity, the Force’s instinct is to side with the party of government. When officers happen on a political standoff, they assume, invariably,it has been provoked by a government opponent. At such times, the police do not understand that they should be firm but restrained: They believe, instead, that to be firm, an officer must be brutal and that if an officer is restrained, he will be as weak.

NOT CONVINCE

This background means that the latest law and order plans and promises won’t convince the Opposition and their followers. Will police officers be even-handed in tracking known troublemakers on both sides of politics? They won’t think so and the police have some convincing to do.

Lastly, consider the courts: In 2008 Raila Odinga was so disgusted with the parlous condition of the Judiciary; its proven ineptitude and corruption that he said he wouldn’t bother to fight the flawed election results in court. That distrust played a big role in the violence that followed: angry opposition supporters took to the streets as a government of suspect legitimacy dug in.

That distrust was also the impetus behind the judicial makeover required by the 2010 Constitution. The reforms are not complete; there are still some suspicions against the Judiciary but for the most part, these are muted. The Supreme Court looks fresh-faced and has a new Chief Justice.

But it is still a minefield out there and the Judiciary, the Supreme Court especially, could still undermine its own credibility before the elections. It is inevitable: A presidential petition will be filed in August, no matter who wins. The Supreme Court must not make any decisions now that preempt such a petition.

ADMIT IT

So far, the Chief Justice has done nothing that damages the court’s credibility, even his detractors admit that. But this could change. If any one of the multitude of election-related cases wending their way up the court hierarchy reaches the Supreme Court, it could profoundly change public perceptions.

Of these cases, the mother-of-all-bobby-traps is the ‘which are the final results case’, now in the Court of Appeal. At issue is whether the IEBC’s national tallying centre can alter any polling station entries as it tallies and collates figures from the 40,000-odd polling stations.

The High Court has ruled that it cannot; the IEBC has appealed. Unfortunately- the case was not filed by the National Super Alliance, NASA - NASA has claimed this decision a victory. If the Court of Appeal reverses, Jubilee will claim victory. A decision by the Supreme Court on appeal would be, politically, a vote for one or the other of Jubilee and NASA. The court does not need that baggage right now.

That isn’t the only trip-wire. There are also election procurement cases pending. What should the courts do if they find egregious illegalities? In 2013, the PPARB found such illegalities. The Board was aghast that the IEBC had defended these illegalities in the “public interest”, the election being only months away.

Nonetheless, the board eventually buckled, recoiling from cancelling the tender for fear of jeopardising the election. Such a decision creates moral hazard. If the IEBC thinks courts won’t stop illegalities because they fear the political backlash should their judgments disrupt elections, the commission lacks incentives to obey the law. Are the courts courageous enough to tell IEBC that illegality invalidates an election and damn the consequences?

These questions are a reminder to the IEBC, the police and the Judiciary that it is decision time. Peace after August 7 depends on whether they do the right thing now.

Wachira Maina is a constitutional lawyer.