Standards IEBC should meet for credible poll

The Supreme Court’s decision to nullify the results of the presidential election was a brave and unexpected decision.

Kenya must now grapple with the difficult question of how to re-run a presidential poll for the first time.

This is not an easy task, and it will be made harder by the wait for the text of the Supreme Court’s verdict and the civil war raging within the Independent Electoral and Boundaries Commission (IEBC).

COMPROMISE

Until these two things are resolved, Kenya is stuck in electoral limbo, and a remarkable number of issues remain unclear.

This confusion will make it harder to hold a good quality election, and is unlikely to be resolved through judicial or technocratic channels.

Instead, political compromise is necessary to bring the 2017 General Election to a successful conclusion.

In the absence of the Supreme Court’s full judgment, there are two critical issues on which the country must wait for much needed guidance.

REFORMS

First, should the IEBC be reformed and, if so, how?

Second, what standard does the next election need to meet in order to be acceptable?

Both of these questions are of the greatest importance to the preparations for the next polls.

Until we know exactly which parts of the process the Supreme Court has taken the greatest issue with, it is hard to know where the IEBC should be concentrating efforts.

RULING

Moreover, if the court comes to a damning verdict on the IEBC or suggests that there was intentional manipulation by senior figures, it is hard to see how the commission can continue in its current form.

As a result, it is not really accurate to say that the country has 60 days to organise the next polls – in reality, serious preparations can only be done once the judgment is in, which means that up to 21 days will be effectively lost.

Moreover, it is important to keep in mind that while the court’s judgment will play a fundamental role in shaping how the next few months pan out, it is unlikely to resolve the country’s political problems.

LEGISLATION

While constitutional judges can say what contravenes the constitution and the law, and give a clear indication of what would not, they are not legislators.

This is an important but often overlooked point.

On the one hand, judges typically do not have the power to actually dictate a specific legislative solution, and the history of Supreme Courts – for example in the United States – suggests that it is precisely when they seek to do so that their authority becomes most contested.

On the other hand, they are legal experts rather than electoral ones, and may not feel that they are the best people to design a complex process of electoral system reform.

CONSULTATIVE APPROACH
Taken together, these factors suggest that while the Supreme Court’s ruling will have profound implications for Kenyan democracy, on its own, it may not constitute a clear roadmap on how to conduct the re-run.

To be clear: This is not a criticism of the Supreme Court in any way, just a reflection on the typical role and jurisdiction of constitutional courts within the wide political system. 

Of course, until we hear from the court again we cannot know for sure, but given that this is a strong possibility, it is worth giving some thought to how else a blueprint for reform might be put together.

It is already clear that such leadership will not come from the IEBC.

Instead of learning the lessons of the election and embracing a more inclusive and consultative approach, the commission went straight ahead and declared that the re-run would be held on October 17.

INFIGHTING

Not only did this fail to give the commission all of the available time to prepare for the polls – a strange move in light of the tight timeframe – it has also antagonised the opposition.

Predictably enough, Nasa leaders quickly rejected the date.

In the wake of this debacle, it seems clearer than ever that the commission is not an institution capable of devising a new set of election arrangements that will carry the confidence of all parties.

Indeed, at present the IEBC seems to be more pro-occupied with fighting internal battles than with repairing its reputation.

As different leaders brief against each other – in some cases by deliberately leaking embarrassing documents – the complete absence of any unity or professional identity suggests that the commission has been the biggest loser of the 2017 polls so far. 

SOLUTIONS
The current confusion and lack of direction represents a profound challenge to holding a high quality election.

If the Supreme Court does end up focussing heavily on the quality of the process in its ruling, then it will be imperative that the re-run is well managed in order to avoid the next poll also being declared “null and void”.

Otherwise Kenya could get sucked into a process of never ending elections that would be hugely damaging to both the economic and political systems.

Of course, with so many unknowns, any predications at this stage are speculative.

But if this analysis proves to be accurate, then it seems unlikely that the judiciary or the IEBC will be able to provide all of the answers that the country urgently needs.

In that case, successfully resolving the impasse is likely to require heavyweight political actors to put aside their differences and negotiate a series of concrete reforms and measures that address their main concerns.