KATIBA CORNER

GHAI: Does anyone really want our elections to be properly run?

Let it be said that one group who clearly do want credible elections are the Judiciary

In Summary

• Every Kenyan has the right to vote, a right to stand, and a right that elections are fair.

• The administrative arrangements – for both registration and actual elections – must facilitate and not deny that right to vote.

IEBC Chairman Wafula Chebukati, Commissioner Prof. Abdi Guliye and Acting CEO Marjan Hussein Marjan when they isnpected the ongoing BBI Supporters verification exercise at the Bomas of Kenya on January 19, 2021.
IEBC Chairman Wafula Chebukati, Commissioner Prof. Abdi Guliye and Acting CEO Marjan Hussein Marjan when they isnpected the ongoing BBI Supporters verification exercise at the Bomas of Kenya on January 19, 2021.
Image: IEBC

On Sunday, I did something unusual for me during Covid: I went up the Thika highway. 

Almost immediately I saw a huge poster saying “President XX 2022”.  XX is a governor.

A second matter of concern has been the stories one hears about politicians appearing in various locations and dishing out money, t-shirts and other goodies.

Thirdly, there is the failure of the electoral commission to register any appreciable number of new voters during their recent so-called mass registration.

One of the most disappointing (and perhaps revealing) things about the whole BBI process was the lack of any real effort to deal with the issue of credible elections.

Indeed, the most prominent and discussed issue was the idea of having a prime minister and two deputies and being “inclusive”. You might say the whole idea was to enable the putting together of an unbeatable broad coalition for the 2022 elections, thus making actual voting almost irrelevant.  As it is in a one-party state.

Let it be said that one group who clearly do want credible elections are the Judiciary. As last time they are already planning how to prepare the courts for the cases that will come before them, and how to give suitable priority to deciding them. Of course some people persist in thinking that this is all about a confrontation between the Executive and the Judiciary…

The Constitution puts forward a vision of Kenyan elections (as of so many other things).  Every Kenyan has the right to vote, a right to stand, and a right that elections are fair.

The administrative arrangements – for both registration and actual elections – must facilitate and not deny that right to vote. Registration of voters must be continuous. Everyone’s vote must as far as possible have the same weight. Elections must be fair and free from violence, improper influence and corruption. The system must be clear and transparent. There must be a code of conduct for parties and candidates. Public resources should not be used for electioneering. 

THE ELECTORAL COMMISSION

I am sure that September 1, 2017 is engraved on the hearts of Commission staff and commissioners – the day the Supreme Court nullified the presidential election. It may be thought of by many as a terrible defeat for Uhuru Kenyatta.  But really, it was a devastating rebuke for the IEBC.

The court said, “the illegalities and irregularities committed by the [IEBC] were of such a substantial nature that no Court properly applying its mind to the evidence and the law as well as the administrative arrangements put in place by IEBC can, in good conscience, declare that they do not matter, and that the will of the people was expressed nonetheless.”

We depend on the IEBC very much for law abiding and clean elections.

ELECTION PERIOD

The ordinary law passed about elections makes constant reference to the “election period’ or “campaign period”.  

“Campaign period” is specified by the IEBC and is a concept used only in relation to fair use of public news media.  Election period is the time between publication of a notice by the Commission for an election and the Gazettement of the results. Various principles about decent behaviour apply during this period. And there are specific offences of giving or taking bribes during this period, or carrying out intimidation etc.

One must ask: What is the point of setting up a whole regulatory system based on the concept of “election period” or “campaign period” when apparently politicians can campaign nearly a year before these periods begin?

And much that is happening now (like unruly behaviour at meetings) must break the law any way. Is anyone doing anything about that?

And how much public money is being spent on this electioneering?

CONTROLLING EXPENDITURE

Early drafts of the Constitution included provisions like: “the Election Commission in responsible for the …. regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election.” 

This is what the Committee of Experts’ second draft said in early 2010. Where did it go? The answer is: into that graveyard of good ideas, the Parliamentary Select Committee that also imposed on us the presidential system of government. In other words, the politicians did not want it.

Nothing changes!

The 2013 Election Campaign Financing Act revived the idea of the IEBC setting limits to and monitoring campaign spending and contributions. It was required to make rules on election campaign financing at least 12 months before a general election.

But the very Parliament that passed this Act felt that, after all, they did not want this to apply to them. They changed the Act to disapply it to the 2017 election.

This year, the IEBC did indeed make some regulations – exactly one year before the 2022 elections (they were published on August 9 2021, dated August 8). The National Assembly rejected them – including because of this late publication.

Why did the IEBC publish them so late? They did face a problem. At the time they had only three commissioners. And, in the BBI case, the High Court said that the IEBC could not validly check the signatures to the Bill to amend the Constitution or conduct a referendum because it lacked quorum.

A court might equally say it could not make regulations on something as important as campaign spending without a quorum. It looks as though the IEBC hung on as long as possible to see if they got a quorum before publishing their regulations – or perhaps to see if the Court of Appeal took a different view of the quorum question.

That was not the Commission’s fault. It was squarely the fault of the President, who is responsible for starting the process for filling a vacancy in the IEBC. Did the President really want a functioning election commission? And who was responsible for advising him what he needed to do?  The Attorney General is the obvious candidate.

The National Assembly said the IEBC broke another rule: That the regulations were to be submitted to the House before being published. Some of this confusion may have stemmed from the lack of clarity in the Act Parliament itself passed.

Were the parliamentarians in good faith? Were they really concerned about the following of legal procedure to the letter, or were they seizing the chance to put off for another election cycle the day when they are governed by campaign spending limits?

Certainly some of them would love to out this off for ever.  There is apparently a Bill coming to the Senate to achieve this.

VOTER REGISTRATION

The IEBC’s achievements during this “enhanced continuous voter registration exercise” have been disappointing to say the least. It seems that neither the politicians nor the IEBC have managed to fire the imaginations of possible voters.  They are continuing the process for a bit longer.  But even then, they will obviously miss many people who will either decide late in the day they want to vote or who even become entitled to vote only close to the elections,

Voter registration must be continuous. But do people know how they can do it?  A newspaper asked why cannot one register to vote the same way and in the same place as one gets an ID card?  It’s a good question.  The IEBC may say it is their job as an independent commission. But the truth is that the exercise already depends on the National Government Coordination System. No ID (or passport) --no voter registration.

Article 38 says that every citizen has a right to register.  Every citizen – the less enthusiastic, the less informed, the person who lives in a remote place, the person who can’t afford the matatu fare.

We need a credible electoral system. But: the people who are so slow to register, those who view elections as a chance to get Sh500 from one or more candidates, the MPs,  the senators, the President, even the IEBC – who really cares?

The author writes in her own capacity