Importance of elections
A year from now, Kenyans will go to the polls to elect a slate of six state officers, ranging from members of county assemblies to president. The road to that election is paved with uncertainty, as the country may now face the critical but extremely delicate task of choosing new leadership for its electoral management body (EMB). The choices it makes could have a profound impact on public confidence – not just in the election but in the very legitimacy of the elected government.
Public demand for change
Change has been a long time coming. In the aftermath of the 2013 election, public trust in the Independent Electoral and Boundaries Commission (IEBC) was already low. Less than half (43 percent) of Kenyans said they had a “great deal” of trust in the IEBC. This followed a Supreme Court trial which highlighted a host of unanswered questions about the administration of the 2013 election. Issues such as massive technological failures on election day, multiple voter registries, each with various totals, and serious irregularities in counting and tallying sheets left many Kenyans distrustful of the electoral process and the final result. Since that election, corruption scandals implicating IEBC commissioners have added to public frustration; anti-IEBC protests left several dead and scores wounded earlier this year. Most recently, by-elections and mass voter registration drives have been riddled with many of the same issues that plagued the 2013 polls, including technology failures, names missing from the voter registry and delays in the announcement of election results.
By last month, public confidence had dropped precipitously. A public opinion poll showed that only 34 percent of the Kenyan population believes the IEBC can manage the 2017 election successfully while almost half do not have faith in the Commission’s ability to administer the polls. Among opposition supporters, confidence is a paltry seven percent.
Now, after a month of review by two parliamentary select committees, the IEBC leadership has agreed to step down in return for a sizeable compensation package. This agreement has been somewhat controversial, as some argue that it does little other than reinforce impunity. As stakeholders settle down to decide on the appointment of a new set of commissioners, Kenya is at a critical juncture. Will it be able to restructure the IEBC in such a way that it can overcome the problems that have troubled its predecessors and re-inspire public confidence, or will replacing the commissioners be little more than a superficial facelift?
Issues facing the new IEBC
A primary issue is the IEBC’s independence, especially the public perception of it. Indeed, the Commission’s perceived bias against the opposition is one reason for the demand that it must go. Going forward, stakeholders must think carefully regarding how best to address fears about possible bias and ensure public faith in the independence of the IEBC.
The reality, of course, is that even the most mundane electoral issues and tasks tend to become politicized in Kenya, and it is difficult for any EMB – or any state institution, for that matter – to escape allegations of political bias in the lead-up to an election.
One option is to simply acknowledge political parties’ influence and allow them to nominate equal numbers of commissioners. This way, each side checks the other. Even though individual commissioners are seen from the outside as partisan, the internal checks on each other ensure that the Commission is still credibly perceived as an impartial body. Another option is to choose commissioners who are electoral and administrative experts. Analysts point out that this type of commission tends to be able to reject political pressure and the commissioners’ impartiality can promote the credibility of the Commission. It is worth noting that the Kenyan Constitution allow for independent commissions -- such as the IEBC -- to include foreign experts in their leadership (Art. 78 (3)). The inclusion of content experts who have no personal stake in local politics brings added credibility, especially in the context of a polarized political context. Kenyans could also choose a mixed commission, made up of a combination of political appointees and topical experts. In some ways, this is the best of both worlds, because it allows for expert knowledge and political input, both of which are crucial to the smooth administration of an election.
Other issues to consider include the number of commissioners, the length and limits of their terms, their appointment as full-time or part-time members, the necessary professional qualifications for office, and the status and responsibilities of the new Chair of the Commission. These are all weighty issues, with serious potential consequences. For instance, if all commissioners take office at the same time and have the same terms of office, a new batch of commissioners will have to run future elections without the benefit of institutional memory to guide them. If all commissioners are full time, it could add significant costs to an already expensive electoral process. It will also be important to consider the balance of power between the commissioners and senior administrators, the latter of whom bear the primary responsibility for the technical implementation of high level decisions. The decision making process will have to include careful consideration of the benefits and drawbacks of each option.
Integrity, transparency and participation
Whatever options are chosen, it will be vital that recruitment and/or appointments are transparent and that individuals under consideration are vetted against the Constitution’s standards of integrity of State Officers. Moreover, the recruitment, interview and confirmation processes should be publicly accessible, and mechanisms for public questions and feedback should be incorporated. Kenya might consider instituting a system like that in Namibia, where interviews for potential commissioners are open to the public and where registered voters have the right to submit written objections to any applicant.
The new Kenyan Commission faces an uphill battle. It will have less than a year both to prepare for a complex election, campaigns for which have already begun, and to revive public confidence. Communication with the public will be key. Going forward, the IEBC should consider establishing working groups with various stakeholders, including the media, the judiciary, civil society, and other electoral actors. Here, organizations can agree on respective roles and responsibilities, create plans and timelines, stay updated on progress and work together to address problems. This kind of constant communication keeps key stakeholders and thus their constituencies informed. It helps everyone to stay on the same page, and it prevents the spread of dangerous rumors and misinformation.
Kenya’s struggle is not unique; many other countries have gone through similar reform processes. Fortunately, success is entirely possible. The Nigerian electoral commission was also once widely distrusted by the public. The leadership of Chairman Attahiru Jega, however, had a significant impact on public faith. Chairman Jega’s leadership was marked by a series of reforms, which included a restructuring of the Commission to improve its efficiency, the development of a new and widely trusted voter registry, and the introduction of new technology to decrease the risk of fraud. Perhaps most importantly, the Chairman’s commitment to impartiality and his willingness to work with a wide array of stakeholders helped the Nigerian public believe in the integrity of the election and the value of their votes.
Kenya is at a crucial juncture on its road to elections. Let’s hope the new EMB has what it takes to lead the way.
The author is a Programme Officer at the International Institute for Democracy and Electoral Assistance (International IDEA).