Photo/FILE The Samuel Kivuitu-led team was accused of bungling the election leading to violence and a loss of confidence in the electoral process.
By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted Saturday, July 9 2011 at 16:07
Posted Saturday, July 9 2011 at 16:07
After the enactment of a law to establish the team that will conduct next year’s General Election, the spotlight is again on President Kibaki and Prime Minister Raila Odinga.
The two leaders and Parliament must ensure that the Independent Electoral and Boundaries Commission (IEBC) is in place before the end of August as required by the Constitution.
The law requires the two to kick-start the process. They now have less than 10 days to appoint a panel that will interview IEBC candidates.
And in doing so, President Kibaki and Mr Odinga face a delicate test and bear the ultimate responsibility of ensuring the selection and composition of the team benefit from lessons learnt from the 2008 post-election bloodbath partly blamed on a polls commission, which was seen as partisan.
The President signed the Independent Electoral and Boundaries Commission Bill on Tuesday, which mandates him, in consultation with the PM, to appoint the selection team within 14 days of its commencement.
Speedy formation
The Kofi Annan Panel of Eminent African Personalities, Justice minister Mutula Kilonzo and chairman of the Constitution Implementation Commission Charles Nyachae have called for a speedy formation of the polls commission.
“Critical institutions, laws and processes for the elections needed to be put in place early enough to enable adequate preparation to be made,” said a report by the panel released on Wednesday.
The group that brokered the 2008 power deal, which ended violence, also demanded that the date for the next election be clarified as soon as possible to help put in place the necessary institutions and logistical measures in good time.
“We need the panel yesterday,” said Mr Kilonzo, pointing out that given the increased load in the next election, the electoral team requires sufficient time for preparation.
He cautioned that the manner of appointment and composition of IEBC must be above board to prevent any suspicions over the integrity of the next elections.
“The two principals and Parliament must protect the integrity of the process to reflect lessons learnt from the 2007 and restore public confidence in the elections,” he told the Sunday Nation.
Mr Issack Hassan, the chairman of the Interim Independent Electoral Commission, has also sounded the alarm over possible delay in organising the poll.
Already late
“We are already late and we need a law to help us prepare for the elections,” he says. Besides the presidential and parliamentary elections, the team will conduct gubernatorial elections (for senators and governors).
Further, the commission has the additional task of concluding the review of constituencies boundaries and wards, which was initiated by the Andrew-Ligale team.
The IEBC must publish its final report within four months of the date of its appointment.
According to the Act, President Kibaki and Mr Odinga will appoint four out of the seven-member selection panel, which Parliament must approve.
The President shall nominate two members, a man and woman and Mr Odinga a similar pair to the panel.
Others will be a nominee each from the Chief Justice Willy Mutunga-led Judicial Service Commission, the Kenya Anti-Corruption Advisory Board and the Association of Professional Societies of East Africa (Apsea).
The anti-corruption board is chaired by lawyer Okong’o Omogeni while Dr Daniel Ichang’i leads Apsea. Dr Ichang’i is remembered for chairing the panel that vetted and endorsed Dr Bethuel Kiplagat, the suspended chairperson of the Truth, Justice and Reconciliation Commission.
The Mutunga commission, anti-corruption board and the professional society shall each submit two names of nominees (a man and a woman), to the Clerk of the National Assembly.
Then Parliament shall approve one of the nominees or reject all of them. If rejected, the nominating bodies will be forced to pick different faces.
Recent history has shown that appointment of the electoral commission is an emotive process usually with political competitors keen to appoint “user friendly” members to the commission.
In the run-up to the 2007, the leading opposition politicians accused President Kibaki of stuffing the then Electoral Commission of Kenya with his cronies.
The Samuel Kivuitu-led team was accused of bungling the election leading to violence and a loss of confidence in the electoral process.
The Waki Commission, which investigated causes of the post-election violence pointed out that disagreements over nomination of commissioners fuelled the strong accusations that President Kibaki had stolen the election.
To prevent a repeat of the 2007 debacle, the Kriegler team, which investigated the integrity of the last election, recommended radical reforms in the electoral system including dissolution of the ECK, review of constituency boundaries, fresh voter registration and massive civic education to restore confidence in voting.
Members of the new electoral commission will be vetted and approved by a Parliament irreparably split between forces supporting the PNU/ODM axis revolving around presidential hopefuls Mr Uhuru Kenyatta and Mr William Ruto against those of Mr Odinga’s ODM wing.
The Uhuru-Ruto group is emboldened by its high numbers which last month saw it push through the nomination of Mr Keriako Tobiko as the Director of Public Prosecutions despite strong resistance.
Transparency
In line with the constitutional requirement for transparency, the Act requires the panel to invite applications from qualified persons to the commission, short list and interview them in public.
After the interviews, the panel shall select three persons qualified to be appointed as chairperson and 13 persons qualified to be appointed as members of the commission and shall forward them to the President.
The President and PM will then nominate one person for appointment as chairperson and eight others as members and send the list to Parliament for vetting and approval.
The President and PM will then nominate one person for appointment as chairperson and eight others as members and send the list to Parliament for vetting and approval.
If Parliament rejects any of the nominees — either as chairperson or member — the principals will pick a replacement from the remaining nominees on the panel’s list.
But nomination to IEBC is no walk in the park. The Constitution has raised the threshold for the candidates with emphasis on integrity, accountability, transparency and public participation.
The chairperson of the commission shall be a person who is qualified to hold the office of judge of the Supreme Court and meet the requirements of Chapter Six of the Constitution.
Chapter Six says that state officers should bring confidence and honour to the offices they occupy.
Besides high academic qualifications, Article I66(2) of the Constitution says that an individual to be appointed as judges should have a high moral character, integrity and impartiality.
The IIEC has been commended for holding referendum on the Constitution last year, making its commissioners leading contenders.
Moreover, section 28(2) and the Sixth Schedule of the Constitution is sympathetic to the team. It says: “...regard shall be had to the need for continuity and the retention of expertise and experience.”
But Mr Nyachae says retention of IIEC members is not automatic. “My understanding is that the Hassan team will apply like any other candidates and only have an added advantage.”
But Mr Nyachae says retention of IIEC members is not automatic. “My understanding is that the Hassan team will apply like any other candidates and only have an added advantage.”
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