• This article seeks to offer a ground for introspection of our distinct or various but complimentary functions or roles.
• Two, the views are meant to raise important, informed, and conscious dialogues or debate about electoral preparedness
Kenya will on August 9 hold its seventh multiparty general election since December 1992.
Except for the 2002 general election, various civil or political actors have disputed all the other polls.
From the foregoing, this article targets these stakeholders, who are either individuals, institutions, networks or the government, with leverage to influence the process or the eventual election outcomes.
There will also be observers from the African Union, the European Union and or the United Nations.
This article seeks to offer a ground for introspection of our distinct or various but complimentary functions or roles.
The views are meant to raise important, informed, and conscious dialogues or debate about electoral preparedness and in good faith to appeal to the good offices as ‘ambassadors’ of constitutionalism and the rule of law.
The 2007 was marked by violence never witnessed before, resulting in thousands of deaths, injuries and massive displacement of people across the country. There were problems with the 2017 election as well.
Therefore, as we monitor, observe or execute other duties in this election, it is important to propose how the preparedness could be made efficient and effective so that the outcome reflects the will of the people.
The IEBC, the independent constitutional commissions and offices, the police, political parties, civil society and faith-based organisations are some of the institutions under scrutiny.
Others are the National and County Executives, the regional and international observer missions and civil and political actors.
The IEBC remains the most important actor because as the electoral management body, it is charged with the mandate of conducting, managing and supervising elections.
Therefore, how it demonstrates its independence, capacity, capability and other roles will determine how other actors perceive it.
From a short assessment, especially between January and June 2022, the IEBC is not demonstrating independence, capacity or capability to draw trust and confidence on their mandate.
Examples are galore. In a forum held last month, the IEBC was literally under scrutiny on constitutional, legal, strategic, operational, and even administrative preparations, among others.
To demonstrate the back-and-forth about leadership and integrity yet the courts have already pronounced themselves on the clearance or lack of aspirants. Further is the issue of whether the IEBC has done an audit of the 2017 Supreme Court decision and what it has done to achieve the short-, mid-, and long-term orders of the court.
Additionally, there have been legal issues such as whether IEBC knows that the law requires them to have the printed the voters register versus the contentious interpretation on the same.
It is about a month to the election but access to the register is still controversial and a petition for the print out by the Kenya Human Rights Commission has already been filed in the High Court.
Technical issues about the Kiems kits, and their reliability, among other issues about the failed demonstration of June 9 to test the transmission of results.
Other issues include timely procurement and delivery of electoral-related equipment. Additionally, the IEBC’s weak communication further diminishes public trust and confidence.
The proposed recommendation is that a round table meeting should be convened immediately by the IEBC or any other actor with the objective of dealing with the red flags and other issues that have been pointed out in the campaign trail. [IEBC chairman Wafula Chebukati on Thursday announced there will be the National Election Conference on July 11-12].
INDEPENDENT, COMMISSION AND OFFICES
The Independent Constitutional Commissions and Offices have an important role to play, independently and interdependently.
For example, the Ethics and Anti-Corruption Commission has a crucial role is stemming aspirants with integrity issues from contesting for office, as it did recently by flagging 241 individuals with questionable integrity. While many were already facing investigations, others were already facing charges in court.
There is public controversy and contentious interpretations of Article 99 of the Constitution on prosecution or conviction versus aspirants who are pursuing other court avenues. It should be understood that conviction of aspirants for criminal offences should and must be differentiated. It is the understanding of this author that criminal culpability should be contradistinguished from lack of integrity.
In this regard, and to illustrate, the issue facing some aspirants about their education status and certification is an integrity issue and not a matter of criminal culpability. To forge documents and present them as genuine should be a matter of outright lack of integrity not that of Article 99. Period.
The National Cohesion and Integration Commission, which recently released a sampled survey report on potential hotspots, averaging to a national potential for conflict at 53.4 per cent.
In this report, the NCIC assigned institutions on what they should do to avert potential conflict from being our waterloo in the upcoming polls.
Already, as the political campaigns gear up, we are witnessing what NCIC warned in its report. The issue is rife and it is now up to the Police to act and prevent possible violence.
The Independent Policing and Oversight Authority, which works closely with the Internal Affairs Unit of the Police and the National Police Service Commission, is also a key player in regards to security.
In March 2022, IPOA launched a monitoring strategy for police operations, and therefore are already on the ground.
Despite budgetary constraints and late releases from the National Treasury for many independent institutions, IPOA needs to be felt deeply and vastly on the ground to hold police accountable.
Such a case is the recent tear-gas canister that was lobbed at a campaign rally in Gusii stadium reportedly by a police officer, who was not even assigned to provide security in that rally. The case is ongoing in Kisumu County, and therefore, not a subject of discussion.
The National Police Service is charged with the responsibility of providing safety and security of all electorate and the candidates during the campaigns, the Election Day and after the results are announced.
The above matter of the officer who allegedly lobbed a teargas canister is but an example of either police providing safety or contravening the same.
The general elections of 2007 and 2017 are fairly recent for civil and political actors but the question on whether we are still pursuing re-active policing or pro-active policing, as we approach the August polls, remains.
The Inspector General of Police was unfortunately recruited against express provisions of the law. The Constitution and the NPS Act provide for a public, open and competitive recruitment of the occupant of this office to ensure they retain that independence. However, whether it is because of the wanton impunity in Kenya, the current IGP and the immediate predecessor were recruited in opaque circumstances by the Presidency.
In this regard, there could be an institutional strategisation or re-strategisation followed by communication by these institutions on the safety and security strategy these institutions have separately or jointly planned, as soon as possible.
Perhaps, this could be based on the existing and public reports and strategy by IPOA on the issues that Kenya faced with the NPS in the 2013 and 2017 general elections.
These two elections, without mentioning that of2007, are a painful reminder of what we should completely depart from to ensure a free, fair, credible and genuine poll come August.
Political parties and alliances remain the eyesore of electoral processes and a bitter reminder of how far Kenya still has to go in its democratic trajectory.
Parties and the so-called pre-election coalitions are simply vehicles. While politics is simply defined as the art of seeking power, ascending to power, and consolidating it, parties in Kenya have misunderstood this concept.
These institutions have made monumental blunders that contradict international norms, regional instruments, the 2010 Constitution, the laws passed in Parliament.
Whereas Kenya has the Office of the Registrar of Political Parties and the Political Parties Disputes Tribunal, the way in which the parties operate is simply describable as unparalled impunity.
The parties’ primaries, plus the continuous contestations, outright violations of the Constitution and the Elections Offenses Act and other laws is demonstrable evidence.
With or without the ORPP and the PPDT, Kenyans and electoral actors need to deeply re-interrogate these PPF with a view of avoiding conflict and with a view of stemming further escalation after the announcement of results.
CIVIL SOCIETY GROUPS
Since 1992, civil society organisations have played a crucial role in deploying election observers and monitors, who have acted as a check against the excesses committed by particularly the parties as the players, and the electoral commission.
In their advocacy reports, which are indeed reliable to a very large extent, are a rich pool for many actors in the judicial and quasi-judicial processes that follow after elections. They have been described as the voice of the voiceless.
Be that as it may, they have not been the non-partisan actors that they are supposed to be. Whereas they claim the same, overtime, particularly since 2002, civil society groups have played another subtle role— expressing non-partisanship during the day, and dining with political players during the night.
In fact, some of civil society doyens are now consulting with either of the two leading formations with gusto during the day: no longer at night. This author has questioned some leading luminaries how they will undertake monitoring or observing in a non-partisan manner in such spaces.
Evidently, some of the board or executive members of the civil society groups are the main advisers of the political players.
Any keen observer, political or otherwise, may want this issue discussed before we go deep into the murky waters in court petitions, such as the one filed by the KHRC about availability of the printed register, yet the institution is deeply engrossed in one of the formations as it was in 2002.
Similarly, the faith-based organisations are in the same quagmire. They have been the voice of the voiceless, whereby they have recruited part of their clergy and ‘flock’ to ensure elections are transparent and credible.
Demonstrably, in 2002, both FBOs and CSOs partnered to form the largest observer mission in Kenya: the Kenya Domestic Observation Programme. It had over 29,000 poll observers in the then 27,000 plus polling stations.
Again, like the CSOs, FBOs largely depend on donor funding, but the latter have own-source revenue, however small, from ‘well-wishers’ and the ‘flock’.
Recently, the Supreme Council of Kenyan Muslims and the National Muslim Leadership Forum held a dinner with one of the political formations and endorsed the same.
Soon after, on July 2, the National Council of Churches of Kenya demanded that Supkem refunds all donor monies they had fundraised together under the condition of non-partisanship.
The altercations, based on the principle of non-partisanship, have already commenced. Again, this requires an honest conversation amongst the FBOs. To have transparent processes towards the August poll, we cannot afford the FBOs leadership quarrelling publicly. Rather, ‘private’ dialogue is encouraged.
Similar to the political players, the National and County Executives have also behaved with unparalled impunity since 1992, despite legal provisions. For instance, in a recently released report by KNCHR, they have cited numerous cases of public servants using public resources, despite express provisions of the Public Officers’ Ethics Act or even the Electoral Offences Act.
In this campaign period, it is important to observe how civil servants are blatantly misusing their positions either as state or public officers, using monies sourced from the Treasury, publicly-bought and maintained vehicles or other official resources to openly support either of the two major coalitions.
There are accusations across board but no institution amongst those that exist to enforce the law, as seen above, including the IEBC or the police, have taken legal action to reprimand those violating the law.
Other than one case where an MP who used a vehicle bought and maintained by the Constituencies’ Development Fund to campaign was questioned, this author is not privy to any other.
The electorate is thus being treated to the bravado display of ostentatious public wealth, which is sourced and financed by the taxes that have been deeply squeezed out of them in a depressed economy.
Observer missions are considered neutral participants of the electoral processes. The AU, the EU, the UN Observer Missions are or will be in town. So are many other elections experts, who either represent regional or international organizations.
Ideally, they come to represent not just how fairly ‘modern democracies’ but also how the ‘developed or developing countries’ should conduct free, fair, credible and genuine elections.
They are perceived also to be ‘advisers’ of electoral processes and outcomes. They are thus mostly the individuals who steer the country towards the ideals written in various international and regional regimes.
However, their impact is usually very limited, and sometimes very misleading. To cite an example is the role of such missions in most African countries, which have held controversial elections in the last 10 years.
Illustratively, in the Kenyan 2017 general election, the EU observer mission issued a preliminary statement that the election was credible in August. However, it recalled the statement and issued another in a fortnight, citing irregularities after the opposition complained of the same: a fact that was confirmed with the annulment of the presidential election by the Supreme Court in September 2017.
The individual civil and political actors have been perceived not to have any interest other than adherence to constitutionalism and the rule-of-law, although they have actually and mostly suppressed the same.
This category has interests but chose to prioritise matters of law at the expense of ‘other interests’ that seem to be competing, and strongly at that, in such a heated political environment.
In the proposed meeting let us be crystal clear who are these individuals and they be encouraged to disclose the same.