Focus turns to formation of electoral body

By Stephen Makabila

With the election law finally in place, focus is now turning to the formation of the Independent Electoral and Boundary Commission (IEBC), especially if the next General Election is to be held in August as stipulated in the Constitution.

The much-anticipated IEBC team has the onus of conducting the next elections, billed to be one with the largest number of contestants and most competitive in Kenya’s history going by the number of elective positions at the county and national levels.

The window for applications for those interested in joining IEBC was closed on Thursday, a day before the Election Bill, 2011 was passed in Parliament to meet the August 27 deadline. The selection panel is chaired by Dr Ekuru Aukot.

"We are already behind schedule and the selection panel should work on overdrive without compromising quality to put the commission in place," said Nairobi-based constitutional lawyer Haron Ndubi.

The urgency of establishing IEBC stems from the fact that if the next General Election are held in August next year, then electoral activities preceding the transitional elections have to kick-off around February.

Lobby groups in court

Parliament would be faulted for failing to fill IEBC positions by August 27, and President Kibaki seemed to be alive to this fact as he confessed in his anniversary remarks that he delivered to the nation last Friday evening.

"We have not kept one or two deadlines in terms of appointment of officials due to unforeseen circumstances," the President said.

Lawyer James Mwamu, the vice-president of the East African Law Society, says IEBC should be in place by end of September.

"The new commission is not going to handle an ordinary election. It’s the first election under the new Constitution with almost three times the number of elective positions. If it gets it wrong, the entire electoral process would be a flop," said Mwamu.

Debate on the date of next elections has been rife, but the Constitutional Implementation Commission (CIC) chairman Charles Nyachae had in March, made it clear elections have to come on the second Tuesday of August next year, going by the Constitution.

However, the Supreme Court chaired by Chief Justice Willy Mutunga is expected to make the final decision on when next polls would be held.

Short-listed candidates to face the IEBC selection panel for interviews are likely to be subjected to scrutiny by the National Security Intelligence Service for security clearance, and this to some observers may mean more time consumption.

The IEBC selection panel is supposed to propose three candidates to the President for the position of IEBC chairperson and also pick 13 commissioners, out of which eight will be selected.

The Constitution states that the selection panel will decide on the number of commissioners to pick from the Interim Independent Electoral Commission (IIEC) for purposes of continuity.

If put in place in time, IEBC will preside over the expected Gatundu North and the Kitutu Masaba by-elections, whose holders lost petitions over electoral irregularities. The latter seat was held by the vice-chair of the Parliamentary Service Commission Walter Nyambati while the former was held by Clement Waibara. Justice Fred Ochieng, who nullied Waibara’s elections on Friday last week, however, stayed the execution of his judgement pending a determination of an appeal Waibara intends to file to question the integrity of the court.

One of the major challenges awaiting IEBC is to delimit the 80 new constituencies proposed by the defunct Andrew Ligale-led commission and wards boundaries before elections. The team had a duty to ‘make recommendations to Parliament on the delimitation of constituencies’ before its mandate lapsed on November 27, last year.

If the issue of the one-third gender representation remains un-resolved, then it would also be a headache to IEBC, given its violation may throw the country into a constitutional crisis. The Commission is also required to ensure the continuous registration of voters and revision of the voters’ roll before the election.

It would be upon the IEBC to regulate the process by which parties nominate candidates for elections and the settlement of electoral disputes, excluding election petitions and disputes subsequent to the declaration of election results. The Commission is also expected to carry out voter education and facilitate the observation, monitoring and evaluation of elections among others.

Given the intense political interests, key political players in the Kibaki succession matrix have in the IEBC formation, Dr Mutunga while swearing in members of the selection panel, warned them to be above reproach. Just before the swearing in, Eldoret North MP William Ruto, who nurses presidential ambitions, had claimed some leaders were scheming to compromise the composition of the IEBC.