BBI can't cure Kenya’s flawed elections — report

 

The IEBC reforms proposed by the Building Bridges Initiative are unlikely to cure the flawed electoral system and fail to address underlying "malignant politics", a new report says.

The report by the Electoral Law and Governance Institute for Africa (Elgia) warns that simply having new faces at the helm of the IEBC by removing the current bosses led by Wafula Chebukati will not guarantee a trustworthy poll agency.

“As part of the political agreement on electoral reforms in 2016, the commissioners who ran the 2013 polls were handsomely pensioned and a new lot appointed to run the 2017 elections. The newly minted commission ran such an irregular - even illegal presidential election - that it was nullified by the Supreme Court on a petition by the opposition,” the report concludes.

Different commissions ran elections in 2002, 2013 and again in 2017. The institute also warns against the the nomination of commissioners by political parties, as was suggested in the preliminary BBI report.

Elgia said this mode of appointment may not work “as commissioners end up serving in their personal capacity”, as they have security of tenure and cannot be recalled by the nominating party.

Citing the example of the defunct Electoral Commission of Kenya (ECK) that delivered the 2002 poll, the report says the team headed by Samuel Kivuitu later bungled the 2007 polls, triggering massive violence.

“Some variant of what the BBI proposes has been tried before and found unworkable,” the report concludes.

The preliminary BBI report proposes an IEBC run by full-time commissioners appointed by political parties on a non-partisan basis. They must have a record of accomplishment and integrity.

The BBI report proposes that political parties must be obliged to appoint non-partisan commissioners. It suggests a chair who is not necessarily a lawyer, and as was recommended in 1997, 2007 and 2015, the BBI also suggest that the current IEBC commissioners be removed.

“Though the ECK oversaw Kenya’s best election in 2002, it also ran one of the country’s worst elections in 2007,” the report says.

The Elgia report goes on: “The requirement of non-partisanship could well reward hypocrisy and deception. Consider a nominee who is a hard-core partisan of the nominating party but is so reticent that his political affiliation is unknown.”

The  report says that since the return to multi-party politics in 1992,  Kenya has had only one truly noncontroversial election - the 2002 election that marked the end of President’s Daniel Moi’s 24-year reign.

The other five multiparty elections – 1992, 1997, 2007, 2013 and 2017 - were either violent before and after the results, or badly managed.

The Elgia board is headed by former Cabinet Minister Noah Wekesa and has former IEBC commissioners Lillian Mahiri-Zaja and Yusuf Nzibo on the board.

Electoral expert Felix Odhiambo is its Chief Executive Officer. 

The report also underscores the importance of curing the frosty relationship between the Secretariat and the commissioners.

President Uhuru Kenyatta and ODM leader Raila Odinga are banking on the BBI to cure divisive elections, said to be cause of violence in every poll cycle.

In its report, the Building Bridges team proposes that new commissioners be appointed by parliamentary political parties to steer the 2022 elections.

The team also proposed that the IEBC staff be employed on a three-year contract renewable only once to prevent the continuation of errors.

The Garissa Senator Yusuf Haji-led team yielded to suggestions that the chairperson need not necessarily be a lawyer.

IEBC chairman Chebukati has over time dismissed the preliminary BBI recommendations, maintaining the current commissioners' terms would end in 2023.

There are concerns time is running out, and at this rate, the country may end up in the same state it has found itself in every poll cycle - with new, inexperienced commissioners.

The poll agency currently has three commissioners following the exit of Consolata Maina, Margaret Mwachanya, Paul Kurgat and Roselyne Akombe.

The Elgia report wants reviewed and-or relegislated the consensus reached by Siaya Senator James Orengo and then Meru Senator Kiraitu Murungi on use of technology in elections.

“Perhaps the most important question that Kenyans must determine is what kind of technology should be deployed and utilised during the 2022 General Elections?

“Additional measures aimed at guaranteeing the integrity of results, including allowing the media to transmit the results, should be considered,” the report reads.

The Elgia report says the IEBC staff failed to secure the integrity of elections, mostly because of political interference.

It says politicians interfered both with the commissioners and the staff, creating factions that polarised the commission.

This interference, the report says, usually ends up pitting commissioners against one another, and then commissioners as a group against the staff as a group.

“Politicians do this so regularly because there is no price to be paid for interfering with and subverting the electoral process,” the Elgia poll experts observed.

Elgia also says a Secretariat with term limits is a bad idea, adding that “the BBI proposal will leave the country marooned on a desert island of self-inflicted failure.”

They say it would result in “an IEBC without institutional memory, run by neophyte commissioners and hordes of untried staff. That is a warrant for bungles and cock-ups.”

The Wekesa-led team further observes the issues with the Voters Register equally need to be resolved for the integrity of elections.

Audit firm KPMG concluded a review of the register in May 2017 but the recommendations were not factored into the August 2017 vote.

Quoting the firm, Elgia says there was potential for an additional 1,037,260 dead voters on the register between 2012 and 2017.

The report says that Kenya’s poll system deficiency stems from the lack of an effective oversight mechanism, fingering Parliament for the mess.

“The weakest link in strengthening the electoral oversight, however, remains Parliament.”

It says the central problem “is a badly designed bicameral Parliament that is so internally conflicted that it cannot adequately act as a check on the Executive".

The poll experts say the underlying problem is that Kenya has a presidential system but its legislature is half designed to serve a presidential system and half designed to serve a parliamentary system.

“This makes it ineffectual for either as a legislative chamber or as part of checks and balances,” the report reads.

The experts also criticised the proposal for a hybrid governance system, saying it will increase the President’s dominance over Parliament.

Elgia argues that the proposal will reinvigorate the unchecked presidency of the previous constitution.

“That is hardly going to create an environment for democratically accountable elections,” the report reads.

Other poll weaknesses lie in the procurement of election materials, voter registration, counting of votes, transmission of results and tallying of votes.

Also of concern is the lack of adequate time for political parties to verify provisional results and not providing full access by media to tallying centres.

Elgia castigated BBI proponents for ignoring “how the country’s defective institutions and opportunistic politicians have contributed to the malignant politics".

In watering down the initiative as a cure for the country’s problem, Elgia argues that defective institutions are to blame for widespread corruption, divisive politics, ethnic competition for resources and negative individualism.

Equally troubling, the report reads, are the discrepancies in the Voter Register, especially with the large numbers of voters without valid identification documents.

“KPMG found 171,476 voters’ records without matching IDs, 83 per cent of these were enrolled before the 2013 elections and the rest after that election," the report reads.

Elgia says that such a register of voters “lacks the basic honesty that would give one confidence there would be no fraudulent voting, including by the dead".

The study recommends that Kenya National Commission on Human Rights be given more powers to oversight the core elements of the electoral process.

If dissatisfied or where the IEBC is unresponsive, KNCHR should be able to obtain an order from the courts to enforce compliance, the report proposes.

For accountability and to avoid stalemates or late reforms to the electoral law, the experts hold it is necessary to establish a bipartisan standing committee of the two houses of Parliament to build consensus on poll laws.