DEMOCRACY

GATHARA: Political class not interested in free and fair elections

Electoral reform is a matter of life and death

In Summary

• It may already be too late to do any comprehensive reforms before the 2022 election, given the Kriegler recommendation that any changes be in place at least two years before the poll.

•  However it is time to get up from the slumber, to fix what can be fixed, and to determine not to go back to sleep again.

Deputy President William Ruto, President Uhuru Kenyatta and ODM leader Raila Odinga at the launch of the Building Bridges Initiative report at Bomas of Kenya on October 26, 2020.
Deputy President William Ruto, President Uhuru Kenyatta and ODM leader Raila Odinga at the launch of the Building Bridges Initiative report at Bomas of Kenya on October 26, 2020.
Image: PSCU

Last week, the closely fought Kiambaa by-election pitting candidates sponsored by President Uhuru Kenyatta and his estranged deputy, William Ruto, was marred by allegations of irregularities.

The allegations ranged from vote-buying, state interference to misconduct by election officials - that in the past had led to significant, even apocalyptic loss of life.

Although this time, unlike similar by-elections in March, there was little violence, Jubilee, the ruling party, has said it will petition against the declared results, claiming it was rigged out. 

The poll, which was seen by many as a prelude to next year’s general election, highlighted endemic problems within the electoral system that could spell disaster, if left unaddressed.

Demands for reforms of the electoral system have been a constant feature of every election cycle since the reintroduction of multiparty politics 30 years ago. The script goes something like this: As the general election approaches, opposition demands for changes to level the playing field and the calls are rejected by the people in power.

Following a season of violent confrontations between police and reform-minded activists — in the last cycle dubbed Maandamano (demonstrations) Mondays after the weekly protests called by the opposition — the politicians cobble together a slew of last-minute “minimum reforms”.

These changes, however, do little to enhance the credibility of the ensuing poll or to prevent conflict. In their aftermath, the traumatised country disavows politics and buries the unresolved problems, only for their spirits to rise up and haunt the next cycle.

For a moment, the unprecedented scale of bloodletting that accompanied the 2007 elections shocked the nation out of its complacency. With international mediators, led by the late former UN Secretary-General, Koffi Annan, vowing there would be no return to “the status quo ante”, Kenyans set up a series of commissions to look into the root causes of the cycles of violence. One was led by respected former South African judge Justice Johann Kriegler to investigate the electoral system. However, the moment soon passed. A decade later, many of the safeguards recommended by the commission were yet to be implemented.

Controversies over recent elections highlight the fact that the current system is failing to live up to the constitutional requirement for elections to be simple, verifiable and transparent and that even where laws exist, they are routinely ignored with impunity.

A good example was the August 2017 presidential election, which was annulled partly because the majority of judges on the Supreme Court agreed the Independent Electoral and Boundaries Commission, the agency charged with organising the poll, had behaved as if the Constitution and national legislation “did not exist”.

The protagonists in that election, President Uhuru Kenyatta, re-elected a month later in a dubious repeat election, and his erstwhile rival, Raila Odinga, who boycotted the second poll and instead had himself sworn in as the “people’s president”, have since joined forces, promising to put an end to the spectre of violent and divisive elections. Yet they did not seek to do this by implementing the Kriegler Commission recommendations. Rather, they have attempted to foist their own agenda on Kenyans by amending the Constitution via the Building Bridges Initiative, an effort halted by the courts — for now — for threatening the basic structure of the supreme law.

In truth, some common sense changes to the Constitution and laws are needed, if Kenya is to safeguard its elections. But these are not what Uhuru and Raila were after. For example, under the current law, any challenge to the presidential election must be filed within a week, and can only be adjudicated by the Supreme Court, which only has two weeks to hear and determine it.

In 2013, when Raila first challenged Uhuru’s election, much of the 14-day limit was eaten up suing the IEBC to get the documents he needed to make his case. By the time he presented it, the court essentially denied him a hearing, ruling that there was not enough time left for Uhuru’s lawyers to respond to the 900 pages and for the judges to render a considered decision.

Yet, to date, Parliament has yet to pass a law that compels the IEBC to speedily and freely avail such documentation in such a suit. Neither did the BBI include a proposal to increase the time the court would have to deal with it, something that the former Chief Justice Willy Mutunga has said is necessary. On the contrary, in debating the “minimum reforms” that preceded the 2017 elections, politicians explicitly excluded doing that as a possibility!

It is clear the political class in Kenya is not particularly interested in free and fair elections that reflect and safeguard the will of voters. What they want are elections they can manipulate. Sadly, many see electoral reform as a way to enhance their ability to steal elections, while denying the same to their opponents.

For the rest of Kenya though, electoral reform is a matter of life and death. It may already be too late to do any comprehensive reforms before the 2022 election, given the Kriegler recommendation that any changes be in place at least two years before the poll.

However it is time to get up from the slumber, to fix what can be fixed, and to determine not to go back to sleep again.