Race to control polls team intensifies

By Alex Ndegwa and John OywaThe battle for the composition of the new polls body has intensified, with focus on appointment of first five commissioners and the fate of the more than 400 employees at the Interim Commission.
A Bill for the formation of the new Independent Electoral and Boundaries Commission (IEBC) has been tabled in Parliament and is awaiting debate amid claims some of its sections were edited to suit vested interests.
Legal experts on Saturday said the Bill’s failure to explicitly address the transition arrangements leaves the fate of the employees in the hands of the MPs.
There was tension at the commission offices on Friday, after the employees learnt Clause 31 on transition had not granted them automatic transfer to the new commission.
"The earlier drafts had recommended we be automatically transferred to the new commission. We are shocked at the turn of events," said a senior manager at the interim commission.
The manager who requested anonymity said the employees should not be forced to re-apply for the jobs yet they had just been confirmed on their current positions.
The Bill only addresses the transfer of assets, rights liabilities, obligations, and agreements but does not explain whether the current employees would continue.
In an earlier draft prepared after the Naivasha stakeholders’ meeting last month the transition of staff was spelt out.
It says in Section 31, part 3: "Every person who immediately before the commencement of the Act was an employee of the former Electoral Commission shall be deemed to be an employee of the commission (IEBC)."
Some experts have also complained that a requirement that a person seeking the position of the commission chairman be qualified to be a Supreme Court judge had been downgraded to read such a person be qualified to hold the office of a judge of a superior court. Critics say this could have been revised to favour particular candidate or to exclude others.
Questions are also being raised over the selection panel to vet applicants to the position of commissioners since the Bill gives the President exclusive powers to choose members of the panel.
In earlier drafts, stakeholders had recommended the selection panel be composed of representatives of the Judicial Service Commission, six representatives nominated by parliamentary political parties, an official from the Kenya Anti-Corruption Commission, and the Kenya Law Reform Commission.
But most MPs welcome proposal to stagger the appointment of commissioners even as coalition partners check each other’s influence in the new polls body.
"To appoint a few now and a few later could be tricky," the chairman of the Constitutional Implementation Oversight Committee Mohammed Abdikadir told The Standard On Sunday.
Another hot issue is how many of the commissioners who have served in the Interim Independent Electoral Commission (IIEC) and the defunct Interim Independent Boundaries Review Commission (IIBRC) would join IEBC.
So controversial is the number of serving commissioners to be retained that positions have changed at least three times in recent weeks.
Initially, it was suggested that four of nine positions be reserved for those who have served the two commissions. That was later revised to a slot each, but the IEBC Bill tabled in Parliament on Wednesday makes no such reference.
Justice Minister Mutula Kilonzo suggests three commissioners be retained to fulfil the constitutional requirement.
"But those are decisions for Parliament and I welcome debate on the issue," Mutula told the Standard On Sunday from Vienna, Austria.
It is understood other key players such as the Commission for the Implementation of the Constitution (CIC), Kenya Law Reform Commission, and State Law Office favour three.
The Bill stipulates the chairperson and four other members of the first commission shall be appointed upon the commencement of the Act. Four other members of the commission shall be appointed not more than 12 months from the first appointment, it adds.
Article 28(2) of the Sixth Schedule of the Constitution states: "When members of the Independent Electoral and Boundaries Commission are selected, regard shall be accorded to the need for continuity and the retention of expertise and experience."
If the selection panel picked three serving commissioners, that would leave two posts up for grabs, since the other four would be filled later.
Abdikadir says the staggered appointments guard against the simultaneous lapse of tenures so that an entirely new body is not crafted at election time.
He noted: "The staggering of appointments is good for the country because the tenure of the commissioners would not expire at once causing anxiety. But then there is the issue of who will accept to wait for later appointments," said Ndaragwa MP, Jeremiah Kioni.
The stakes are high in the composition of the IEBC because it will conclude the creation of 80 new constituencies, which stalled last year due to political acrimony between coalition partners – PNU and ODM.
Also contentious is the fate of the IIEC secretariat. The PNU side had opposed inclusion of a clause for the retention of the current team led by the Chief Electoral Officer James Oswago.
Gwassi MP John Mbadi, an ODM member, is unhappy that the Bill did not provide for transition of the current secretariat.
"There was a feeling that for the sake of transition the secretariat should be left to carry on, but this has not been considered in the Bill," said Mbadi, also a member of Constitution Implementation Oversight Committee.
But Abdikadir differs: "The IEBC besides being a successor body is a new legal entity. The new team should be allowed to hire its own secretariat or inherit the IIEC secretariat."