Friday, August 20, 2010

Revealed: What new Bills say about 2012

By OLIVER MATHENGE omathenge@ke.nationmedia.com and PETER LEFTIE pmutibo@ke.nationmedia.com
Posted Thursday, August 19 2010 at 22:30

The next General Election will be conducted by a trim but powerful commission which will also set constituency boundaries, according to proposed new laws.

The new Bills set out to create an independent election system whose members will no longer be appointed at the whim of the President. The Election Bill, when passed by Parliament, will permit prisoners to be registered as voters, not only for a referendum, but also during national elections.

The new Bill seeks partial police powers for officers supervising elections. “A member of the Commission or a returning officer may order the arrest of a person who commits an offence under this (Elections) Act,” says the Bill.

Unlike in the past, when the returning officers’ declaration of results was final, the Commission is seeking to have this changed so that the chairman has the final authority to announce results. The returning officers’ results should only be provisional.

The new commission will have an election security board, similar to those in Ghana and South Africa, to help prevent violence as well as monitor and recommend immediate action against perpetrators of election malpractices.

The Elections Bill, 2009 proposes the establishment of peace committees in every constituency during any election and referendum period. But such committees would not be bound by the provisions of Criminal Procedure Code or the Evidence Act in their proceedings.

Under the new law, Parliament will propose members of the electoral commission while the President will appoint them. The proposed procedure is similar to that used to appoint IIEC commissioners. The Bill also proposes that the registration of voters and for national identity cards (IDs) be carried out simultaneously.

The issuing of voter’s cards is usually ongoing, but it has been criticised in the past due to the large number of double registrations. “The commission may liaise with the government population registration agency to issue elector’s cards simultaneously with the national identity cards provided that the voter will be free to register for voting in the constituency of his choice,” the Bill says.

And petitions and other disputes will be heard by a brand new Judiciary, whose judges and magistrates will have been vetted by a tribunal to ensure that they are competent and not corrupt. The new independent electoral commission will have between three and nine commissioners, far fewer than the disbanded Samuel Kivuitu which had 22.

A new election Bill proposes the merger of the roles currently performed by the Interim Independent Electoral Commission and those of the Interim Independent Boundaries Commission. The commission will have powers to disqualify errant candidates and political parties from elections, suggest prosecution of offenders and stop an election if irregularities are detected.

The competence of judges and magistrates will be vetted, but the public will not get the chance to attend the vetting hearings, like happened with tribunals which investigated suspended judges under the first radical surgery of the Judiciary.

First to be vetted will be Court of Appeal judges followed by High Court judges and then chief magistrates and later all magistrates. The Bills were drafted by the Kenya Law Reform Commission, the Interim Independent Electoral Commission and the Justice ministry with the help from the AG chambers.

Fida executive director Grace Maingi, Nairobi lawyer Katwa Kigen and human rights commissioner Hassan Omar have lauded the proposed law saying the tribunal was structured to ensure justice was administered fairly. But there is concern that the tribunal is dominated by representatives of lobby groups at the expense of legal practitioners.

A team of judges had previously proposed that the tribunal comprises nine members, three from the reconstituted Judicial Service Commission and six picked through a competitive process. Out of the nine members of the tribunal, six shall be from the civil society, religious bodies and the trade union movement while only three will be legal experts.

The laws to reform the electoral process will reduce the number of election commissioners from the 22 in the 2007 election. The current interim electoral body led by Mr Ahmed Isaack Hassan has nine commissioners.

Under the new law, Parliament will propose the membership while previously, the appointment was left to the President, which is one of the reasons given for the perceived lack of independence of the former commissioners. Parliament, through a majority vote will also be able to sack any member of the commission.

The commission will be required to announce, through a gazette notice, the election date at least five months before the date of General Election. Previously, the ECK had to wait for the dissolution of Parliament in order to announce the dates of the elections.

A chief executive officer under the title Chief Elections Officer who will be recruited by the commission will run the IEBC secretariat. The Officer shall hold office for a period of five years and shall be eligible for re-appointment for a further period of five years.

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