As the IEBC debate rages on, Kenyans find themselves caught between two diametrically opposed but equally compelling arguments. On the one hand we have the Cord brigade that wants the electoral body disbanded by any means necessary. On the other hand we have the ruling Jubilee coalition that insists on the status-quo and only favours disbandment through the procedure specified under Article 251 of the constitution. These two positions have virtually engendered a stalemate that could easily hurtle our country to the brink of another precipice.
I agree with Jubilee that Kenya being a democracy based on the principle of the rule of law, employing the extra-legal means being fronted by Cord to deal with the IEBC is unacceptable. However, my agreement with Jubilee on the need to uphold fidelity to the law only goes as far as the ruing collation is willing to use its numbers in Parliament to bring about a genuine overhaul of the IEBC. But when I look at the elaborate removal procedure provided under Article 251 and the underlying political interests, I doubt if Jubilee will allow any changes at the IEBC.
In view of the foregoing, I now understand Cord’s frustrations and why they are seeking the forcible disbandment of the IEBC. Truth be told, it is foolhardy to expect the Jubilee-dominated Parliament to disband the electoral body. Even if they disbanded the IEBC, Jubilee will only accept to reconstitute it in a manner that favours it. For this reason, I agree with Cord that Article 251 may not be the way to deal with the crisis that the IEBC has become.
Those of us who have been around for some time know the struggles that Kenyans had to endure to have the new constitution in place. We have not forgotten that the old constitution that we retired in 2010 was equally a legal document that bound every citizen. But we equally remember the constitutional atrocity committed in 1982, when the National Assembly — in less than one hour — introduced, debated and passed a Bill that would amend the constitution by inserting the infamous section 2A that declared Kenya a de jure one-party state.
The clamour for the new constitution started with the demand for the repeal of the infamous section 2A. It was, however, foolhardy for one to count on the then rubber-stamp Parliament to repeal section 2A via the equally infamous section 47. Because of this stalemate, it became necessary for the opposition to employ extra-legal means such as mass action to force then President Moi to accept constitutional reforms.
Be that as it may, I wish to point out that I personally know a number of the IEBC commissioners to be men and women of integrity. Unfortunately, there is a difference between individuals and institutions — meaning that we can have people who are very good as individuals but working for discredited institutions just the way we can have very good people living in a rotten society.
In this regard, Kenyans need to be honest and accept that, indeed, the IEBC as an institution suffers a serious credibility crisis. The mere fact that a significantly large number of Kenyans turned out in Nairobi to demonstrate against the IEBC and that more are likely to turn out in future demos, leaves no doubt that the institution’s credibility cannot be salvaged by any means other than disbandment. It is not only Cord that has called the IEBC’s integrity into question— a consortium of religious leaders has done so, as have LSK, Amani Congress of Musalia Mudavadi and Gideon Moi’s Kanu.
Cord, Kanu, ANC, NCCK, LSK and others have called IEBC’s integrity into question