Address gaps in electoral boundaries Bill

By SAMUEL M. KIVUITU
Posted  Sunday, May 22 2011 at 17:01

The proposed Independent Electoral and Boundaries Commission Bill 2011 seeks to provide a setting upon which the commission will perform its functions and exercise its powers smoothly, effectively, and with fairness. 

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However, there are some areas where there could be a difference of opinion. It is understandable to propose provisions like Clause 5 (4). Its intended objective seems to be to shield the secretariat from an intrusive commission.

But what is the nature of this intrusion and who will determine when it occurs? 

There being no definition provided and the consequences if it occurs, it is an unnecessary provision, which has the potential to cause acrimony between the commission and the secretariat. 

How is the commission to ensure that the secretariat follows the legal procedure in recruitment and appointments if the law insists that it keep off the affairs of the secretariat?

Clause 7 raises concern because it proposes part-time and full-time commissioners. This is unfair and amounts to an act of discrimination between persons with equal constitutional status appointed to discharge the same obligations.

One group is bound to perceive itself as being treated as inferior to the other. This could cause friction in the commission.

Other than striving to cut costs, this clause does not seem intended to serve any useful purpose. The part-time commissioners will be disadvantaged and are likely to find themselves behind in the tempo of events.

They are likely to be regarded as junior partners who are not entitled to the full brief of the commission’s events. That is unacceptable.

Clause 25 (3) lists the names of the persons and authorities who are barred from interfering with the commission’s performance of its duties.

This list is not necessary because the Constitution has already taken care of that. The listing implies that Parliament is purporting to interpret the Constitution.

Is it not usurping the role of the Judiciary? What harm or peril is anticipated if the list is not provided?

The Second Schedule allows for the formation of a political parties’ liaison committee. This is universal practice.

Experience has demonstrated that such organs are more effective when they are decentralised so that they can also exist at lower levels, like the constituency.

Indeed, it is at this level that they can be most effective because they will be able to tackle situations that may arise. The national committee can then be left to handle the bigger issues.

The omission of the qualifications of the deputy chairperson could be a cause for concern. This is the person who will take the place of the chairperson when the holder is absent.

This could be permanent absence at a critical time. Would it make sense, in that case, if the acting holder does not hold equivalent qualifications to those of the substantive holder? 

If the two are to have similar qualifications, then there is no need to specify only those of the chairperson. 

It should be borne in mind that the prevailing circumstances at the time the deputy chairperson acts in place the boss may be critical.

If these areas are addressed, the Bill is a welcome development.
Mr Kivuitu is former chairman of the defunct Electoral Commission of Kenya and an international election practitioner and observer.