The Inexorable Cycle of Election and Violence in Kenya and Why Parliament is Wrong on Reconstituting IEBC

The Inexorable Cycle of Election and Violence in Kenya and Why Parliament is Wrong on Reconstituting IEBC

By Bilal Mohamud

World over, elections encompass the most fundamental tenet of democracy. A free, fair, credible, and transparent electoral process not only ensures legitimacy for the winner but also guarantees –in all and certain terms –acceptance by the loser. To ensure the achievement of a process to this effect largely demands two things.
One; an open, just, impartial recruitment exercise of the overseer of that electoral process, in Kenya’s case, the Independent Electoral and Boundaries Commission; and two, political goodwill of the administration in place to, in spirit and in the letter, facilitate a conducive environment in which both the recruitment exercise and the electoral process itself are above board.
Going by the recent developments in the National Assembly via the Justice and Legal Affairs Committee, the Jubilee administration is seemingly either not keen on facilitating the best possible environment for the conduct of the 2022 elections or there is a deliberate attempt to skew the electoral process in favor of a particular candidate. This is a recklessly dangerous path to take and could potentially prove to be reckless. Unfortunately, we seem not to have learnt from the painful lessons of 2007, 2013 and even 2017.
When the late former President Daniel Moi handpicked the late Samuel Kivuitu to replace Zacchaeus Chesoni to oversee the 1997 elections, Kenya was barely a democracy. Moi ruled with an iron fist despite calls for reforms largely spearheaded by the civil society. The 1997 and 2007 elections both overseen by Kivuitu, later reappointed by retired President Kibaki, had glaring similarities.
In both, the results were controversial and claims of manipulation and rigging rocked the polling exercise. To this end, both polls were also succeeded in by-election violence. Conservative estimates put the 1997 deaths as a result of the polls in their hundreds whereas in the 2007 elections over 1300 persons lost their lives and close to 600,000 more were displaced.
Much as we try to pussy-foot around the main cause of this chaos on both of the occasions, the underlying factor remains an unfair, partial, and unjust electoral process that puts in place an illegitimate administration in place.
The National Democratic Institute for International Affairs (NDI) in collaboration with the Institute for Education in Democracy (IED); the National Council of Churches of Kenya (NCCK); and the Catholic Justice and Peace Commission (CJPC) released a joint statement outlining their assessment of the 1997 elections shortly after the polls. From issues surrounding the electoral framework to voter registration and the nomination process to actual voting and counting as well as the role of the media, their indictment was a holistic reflection of what ailed the process.
They cited the ‘non-existence of a level playing field for the participants, the institutional bias in favor of the then ruling KANU party and chaos and inefficiency around the logistical and administrative organization of the elections as some of the factors that served to increase political tension in many parts of the country and decrease public confidence in the electoral process.’
When the country dangerously slipped horrifyingly close to an outright civil war 10 years later over bungled polls, many reports on the post-election violence alluded to complete mistrust and/or lack of confidence in the electoral agency, the now-defunct Kivuitu-led Electoral Commission of Kenya (ECK).
Triggered by electoral fraud, tired of systemic ethno-geographic marginalization, and institutionalized impunity by state organs, Kenyans resorted to butchering one another in the months succeeded the December polls. Today, a decade later, the hundreds of families who lost their loved ones together and hundreds of thousands more misplaced during the aftermath of those polls see justice as a mirage.
Tellingly however and even after reports, both local and international, have indicated the need to diffuse ethnic tension and the issue of hotly contested polls by deliberately putting efforts to enhance the credibility of the electoral process to ensure openness, fairness, and accountability, no sitting government has been keen on taking this route. Jubilee is not an exception.
Whether that is by design or by default is another matter altogether. But the consequences of these (in) actions today, as they were then, will be calamitous.
Kibaki rewarded Kivuitu with a reappointment to ECK. The same Kivuitu who declared Kibaki the winner of the 2007 polls would later come to say he did not even know who won the elections. Kibaki, less than two years to his exit appointed a team of 9 IEBC commissioners led by Commission Chair lawyer Ahmed Isack Hassan.
Unsurprisingly, Hassan and his team exited the Commission unceremoniously after intense allegations of results manipulation, corruption, and bribery right from the procurement stage: What later came to be known as ‘the Chickengate Scandal’ which also forced the then CEO James Oswago and other top Commission officials to resign after they were found ‘criminally culpable for bribery and corruption.’
The story does not change with the current Chebukhati-led skeleton of a commission. The ICT manager was murdered weeks to the 2017 polls under mysterious circumstances. The Supreme Court on October 17th, 2017 declared that the illegalities and irregularities in the elections the Commission oversaw were enough to dent the credibility of the entire exercise and voided the results.
Dr. Roselyne Akombe, one of the commissioners, resigned less than a month after the courts ordered repeat polls opining that in her considered view, the agency ‘could not guarantee a credible exercise.’ Three other commissioners also quit months later and CEO Ezra Chiloba was fired soon thereafter.
These mistakes and missteps, from 1997 through to 2017 all point to one thing: the recruitment process for poll officials has –by and large –been unsatisfactory and the electoral process has consequently never been above board. The result of which is disputed polls at virtually every other electoral cycle. This has to stop.
While Moi and Kibaki easily single-handedly picked the agency bosses during their respective regimes, President Kenyatta in appointing the current crop of commissioners gazetted a 9-member selection panel in late 2016. The panel comprised five nominees from religious organizations and four from the Parliamentary Service Commission (PSC) who would forward a list of 11 from which the President would nominate –and appoint 7 –  after approval by Parliament. The intent by the Head of State was good and the commission sprang into action fairly well after the appointment. But the political environment remained considerably toxic.
Fast-forward four years later and less than two years to the next polls, the need to operationalize IEBC is well and truly here encore. And if the recent amendments to the IEBC Bill 2019 by the National Assembly are anything to go by, then we are headed onto a precarious perch.
Parliament wants control over IEBC. This is evidenced by amending the bill to reserve a majority four slots for the Parliamentary Service Commission PSC, in a proposed 7-member selection panel for the new commissioners. The MPs propose the three other slots be filled by one representative from The Law Society of Kenya LSK and two representatives from religious groups.
And therein lies a recipe for chaos.
Parliament is a house of politics. It is and has been independent only on paper. The Executive has time and time again been accused of using it as a rubber stamp. The clearest, most recent example of this protestation was the debacle around the passing of the third basis for revenue sharing amount counties –an impasse that brought to a halt the operations in the 47 devolved units.
What then would it mean to have a House as compromised as the 12th Parliament have the biggest say in picking IEBC commissioners to oversee the 2022 polls?
The initial BBI report unintelligently recommends political parties to handpick the commissioners. Really? Is going back 15 years a solution to the problem of bungled elections? Is this the way to ensure transparency, openness, and accountability from the polls body? Methinks not. Or is it a way to just hoodwink Kenyans into believing that by having ‘our people’ in the commission, our concerns would be sorted? Perhaps.
Let no one fool the other. A compromised Parliament will engender a compromised IEBC. A compromised IEBC will in turn engineer a compromised election. And take it or leave it, a compromised election will quite possibly occasion another cycle of heated electoral dispute and violence. President Kenyatta must reject that bill if he means well for this country and ensures the selection panel is as independent as practicable for it to produce an independent list for an INDEPENDENT Electoral and Boundaries Commission.
As Albert Einstein superbly puts it, ‘the only reason for time is so that everything doesn’t happen all at once.’ We have had enough time to learn from history. We have had enough time to correct our wrongs and we still have enough time to do so. Going by the current hateful, divisive, and heated political environment in our nation, we are tempting fate again, for the umpteenth time.
I hope I’m wrong. And I certainly pray I am but 2022 will be catastrophic.
The writer is a humanitarian worker and social justice activist and can be reached at bilmahmood@gmail.com