Can money Solve All Problems
Yash Pal Ghai and Jill Cottrell Ghai
Like many, I was appalled that Cord and Jubilee had negotiated with members of the Independent Electoral and Boundaries Commission their departure for a huge pay-off. It seems they were holding out to complete their term of office, despite considerable pressure from politicians and civil society, not because they were determined to fulfil their duties to the public but to bargain for this golden handshake.
Basically they are to get what they would have earned if they had worked for the rest of their term, plus the gratuity that would come to someone who worked their full term. For the Chair, The Star told us, this was likely to amount to Sh33 million—Sh12.9 million salary and Sh20.1 million as gratuity, calculated as 31 per cent of the annual salary for each year served. The total payout, said the Star, would be Shs 215 million or so. A staggering sum –especially in the face of poverty in which millions of Kenyans live, and too often die prematurely.
The pay-out would be pretty generous for people who actually worked for their whole contract, retiring with no cloud hanging over them. For a start, of course, their monthly salaries while working (about one million shillings) stands out in a country in which the minimum legal wage for a cashier (to take a job requiring some education) is just under Shs25,000 in Nairobi. Of course there is no minimum set for other than poorly paid humdrum work. But this highlights the excessive differences between Kenyans’ lifestyles (the commissioner earns 40 times the cashier).
For five years’ work a commissioner gets a gratuity of more than one-and-a-half times the annual salary for those five years.
You can see the assumption: once they leave this job they will be suffering. The implication is that they are unemployable once they are no longer holding a public appointment. A bit worrying – that it is assumed we are appointing people who would never get another good job! In reality this is not the truth, not necessarily that they would earn a lot in the open market, but that once you’ve been on one commission there seems a remarkably good chance that you’ll get another similar appointment.
Be that as it may, what really rankles now is that the commissioners are getting this for being pretty well forced to retire because they lack public confidence.
Among the duties of the IEBC is to prescribe the code of conduct for candidates during elections. Its major responsibility is to conduct all public elections, including to parliament, and then to count the votes. Its tasks include the registration of voters, fixing of boundaries of constituencies and wards, supervising nomination of candidates by parties, registration of candidates, settlement of electoral disputes, voter education, facilitating election observation, supervising candidates’ behaviour, and regulating how much money candidates and parties may spend for campaigns.
More broadly, it has to protect the sovereignty of the people (in relation to elections), secure the observance by all state organs of democratic values and principles, and promote constitutionalism (the observance of the principles and substance of the Constitution). For all these important tasks the Constitution guarantees finances and independence; it is not subject to direction or control by any person or authority.
Negotiating with any authority, much less the government or politicians, for lucrative payments, is beyond the IEBC remit. To do so would be to breach their constitutional obligations, and is an act of greed and a breach of integrity. It violates their obligation of “selfless service based solely on the public interest”.
And the Constitution prohibits “conflict of interest”. Negotiating compensation for their departure involves conflicts of interest on their part and on the part of the parliamentarians —who have their own axes to grind. For these reasons, the only body with the mandate to fix state officers’ salaries and benefits (including pensions) is the Salaries and Remuneration Commission.
Surely the chair of the IEBC, a lawyer, must understand this, especially as he was a member of the CKRC which originated these provisions. Mr. Hassan is quoted as saying, sanctimoniously, “The country is bigger than any of us and if there will be a political settlement, the commission will not be a stumbling block”. He was also quoted as saying that the commissioners would support “any dignified process for their exit”— and decided that a generous number of millions of shillings is sufficiently dignified. The IEBC knew that it was negotiating with parliamentarians, not known, for the most part, for integrity or careful husbanding of state funds, and in this instance out not to protect parliament but their own parties—and themselves.
Think about the message this gives potential commissioners: “Don’t bother about integrity, even if you lose people’s confidence you can leave with a tidy nest-egg—and won’t even be disqualified from future public office”.
This leads us to perhaps the underlying issue: the inability of our system to deal with erring public officials according to the constitution and the law. Parliament has the mandate to deal with petition for the removal of commissioners for incapacity, serious misbehaviour or incompetence. But they won’t take action is it does not suit their party or themselves.
And then there are the EACC and the DPP. In relation to the “Chickengate” scandal, Hassan was adversely mentioned when directors of UK printing firm Smith & Ouzman were convicted of paying out bribes of millions to the IEBC. Paul Muite was quoted as saying then that there was enough evidence that some commissioners had contravened the “integrity requirement”. Why have they not been brought to book in court?
Instead the co-chairs of the parliamentary committee negotiating with the IEBC, Orengo and Murungi, praised the commissioners saying that “their stand showed their patriotism and love for the country’’! It does not matter that some politicians pressured them as the Constitution guarantees their tenure. Now they, as well as the parliamentarians, are in breach of the Constitution and should be dealt with accordingly.
Another sordid part of this sad tale is the behaviour of CORD and its attitude towards Hassan and his team. The way that CORD marshalled its gangs to break into the offices of the commission and intimidate its membership is completely unacceptable. Equally, creating havoc and inspiring fear in members of the public outside the IEBC is not only breach of the law, but totally demeaning of the party belonging to Raila Odinga. Not only has he come out of this episode without any glory, but he has lost the support and admiration of many people who have supported him for years. He is compounding this by threats to let loose his gang to intimidate the commissioners (and the public) unless they leave by 10 October.
The episode is not yet over. This is an appropriate time to examine the suitability of the law governing the purpose and performance of independent commissions as well as the rules governing the conduct of parties. It would be important to ensure that the new procedures for the appointment of the new IEBC are consistence with the letter and spirit of the Constitution—not a deal between Jubilee and CORD.
Corruption, bribery and incompetence have been treated as acceptable. Politicians have shown that their primary concern is their careers and remuneration; certainly not the good of the country—and shows how their interests converge, despite their shadow fighting.
Our institutions are further eroded: parliament is discredited, the EACC and the DPP seem toothless (or reluctant to use the teeth they have to chew anything substantial), no-one stands up for the idea of independent commissions, parties (important for democracy) have no principle only manoeuvres. The episode shows total contempt for the Constitution by all involved in this shabby business.
The authors are directors of Katiba Institute.