Parliament has kicked-off a process to radically reform the IEBC and eliminate two centres of power blamed for the vicious infighting that has nearly crippled it.
Details of the planned restructuring coincided with the conclusion of an internal audit ordered by chairman Wafula Chebukati that has indicted, among others, CEO Ezra Chiloba.
The audit is likely to escalate the fights in the trouble-ridden commission. It is seen as a killer punch by Chebukati against Chiloba after months of nasty feuds sparked by the management of the August 8, 2017 General Election.
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The Star has established that a sub-committee of the Justice and Legal Affairs committee of the National Assembly is recommending constitutional amendments to either create the position of an executive chairman or give the CEO more powers as the de facto IEBC boss with part-time commissioners.
"In many countries, the law on the architecture of election administration does not adequately delineate the roles and responsibilities of commissioners vis-à-vis those of the secretariat," says the report by the team seen exclusively by the Star.
The team headed by Kisumu West MP Olago Aluoch analysed the electoral systems of several countries, including Ghana, Australia, Nigeria, India, Canada and Botswana.
The report says Kenya should consider having an executive chairperson who will double up as the IEBC chief executive overseeing the commission’s day-to-day operations.
This is the model used in Ghana, India and Canada.
Under this model, the chairman serve in a full-time capacity with two deputies—one in charge of operations and the other finance and administration.
Then there would be four other commissioners, who will serve on part-time basis except during the election year.
"It may be prudent for Kenya to consider bringing in the four part-time commissioners on full-time basis during the election year when a more hands-on approach is critical and when the commission’s meetings become more frequent," the team recommends.
The committee believes this model will eliminate turf wars between commissioners and the secretariat.
The creation of an executive chairman will, however, require amending Article 250 ( 12 )B of the Constitution, which says the secretary to each independent commission shall be the commission’s CEO.
In her end of assignment report, former commissioner Roselyne Akombe made similar recommendations, saying two centres of power were IEBC’s Achilles’ heel.
"The organisational structure of the commission should be reformed to maintain only one centre of power — the chairman — with sufficient authority to take decisions, probably with a veto vote on certain issues," she recommended.
After the nullification of President Uhuru Kenyatta’s election on September 1 last year, the tension between Chiloba and Chebukati exploded. The chairman fired an explosive memo to Chiloba, blaming him for bungling the polls.
The bitter feud led to the suspension of Chiloba and resignation of three commissioners in protest.
The Olago committee says the tension at IEBC was aggravated by a feeling of sabotage among commissioners.
"The tension between the secretariat and the commission was occasioned by the view, especially among commissioners, that the secretariat defied instructions and the guidance of the commission; while, on the other hand, the secretariat felt the commission was unable to provide adequate leadership and often interfered with the roles and responsibilities of the secretariat," the report states.
The parliamentary subcommittee has questioned the necessity of seven permanent IEBC commissioners whose role is limited to policy formulation and oversight.
"It is not easy to reconcile the full-time status of the commission with its narrow and limited role and function under the same law," the report states.
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But the committee also says the other option ahead of the 2022 election would be to give the CEO more powers and make the position head of the commission. This is the model in Botswana.
Under this model, the CEO would be assisted by two deputies, one in charge of operations and the other for finance and administration. The chairman and commissioners would be non-executive and part-time.
This route would not require any amendment since Article 250 ( 5 ) of the Constitution allows commissioners to serve on part-time basis.
"The CEO may serve until retirement age to ensure continuity and institutional memory; or alternatively, the term of office could be similar with that of the Auditor General or Director of Public Prosecutions," the report states.
But the committee cautions that the position should not be a direct appointment by the President, who may have vested interest to want to control the CEO.
Independent office holders like the Auditor General are appointed for a single term of six years and are not eligible for reappointment.
According to the assessment of the Olago subcommittee, the Constitution and the IEBC Act do not give specific roles to the IEBC chairman.
It is only in the context of the presidential election where the chairperson is recognised as the national returning officer, the subcommittee said.
"In the case of the chairperson the law is silent on a clear role and function; instead, it gives a collective responsibility to the chairperson and the members of the commission for policy and strategy formulation and oversight," the report says.
"This is contrary to the position of the secretary and CEO of the commission to which the law – Section 10( 7 ) of the IEBC Act – clearly bestows distinctive functions and roles upon – chief executive officer, head of the secretariat and accounting officer of the IEBC."
In her report, Akombe dissected the institutional weakness, operational issues and the shortcomings in the conduct of the 2017 General Election.
She said political polarisation, compounded by the fact that the commissioners had no expertise in the management of elections, undermined conduct of the polls.
Akombe said the country should consider having two foreign commissioners on the IEBC to mitigate against bias and political interference.
To enhance transparency, she recommended that the commission’s board meetings should be open to the public and minutes made public.
It should also reduce its “over dependence on legal advice from external commercial lawyers who are prone to political manipulation and instead build its internal capacity”.
"Even if the world’s best commissioners are recruited to manage the 2022 elections, the process will not address the deep grievances that I heard as I travelled across the country. Delivery of a free fair and credible election in 2022 requires more than electoral reforms and electoral justice. It requires a rebirth of Kenya," Akombe concluded.
She called for appointment of commissioners whose 'ethics and moral integrity' are above reproach, and who have demonstrated experience in electoral and political processes, besides relevant academic qualifications.
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