Dark cloud hangs over 2013 elections

By WAHOME THUKU and VITALIS KIMUTAI

The right of Kenyans to elect leaders who meet the integrity requirements of Chapter Six of the Constitution is in danger.

Four institutions whose work is key to ensuring the General Election is free and fair and that only those of high integrity are cleared to stand are in limbo due to meddling by Parliament and disagreements between the two principals, President Kibaki and Prime Minister Raila Odinga.

Key positions in the National Cohesion and Integration Commission (NCIC), Registrar of Political Parties, and the Inspector General of Police have not been filled.

Meanwhile, the team appointed by Kibaki after consultations with Raila to lead the Ethics and Anti-Corruption Commission (EACC) cannot begin work due to a court case.

NCIC is responsible for ensuring politician and Kenyans in general avoid hate speech that could endanger national unity. Registrar of Political Parties Lucy Ndung’u’s term has expired and she has been seconded to the Independent Electoral and Boundaries Commission (IEBC).

Her office is responsible for ensuring parties do not flout the Political Parties Act.

Police Commissioner Mathew Iteere and a host of his senior officers are soldiering on despite their positions becoming redundant on August 27, when the yet to be appointed Inspector General was supposed to take over a unified police command of the National Police Service.

He is to be assisted by two deputies, one for the regular police and the other for the Administration Police.

Both units were named by the Justice Kriegler-led Commission as having failed to prevent post-election violence of 2008. It proposed a raft of reforms that were incorporated in the Constitution to change the face of the police and make its leaders more accountable. The work of the police in arresting violators of election regulations and providing security for polling teams is critical to the success of the General Election.

Mr Mwalimu Mati of the Mars Group said the vacant positions in constitutional offices and key institutions must be filled to end the uncertainties over the March 4 General Election.

 “Anti-reform elements, especially those wielding absolute power and who stand to lose in the new constitutional dispensation, have erected barriers on the implementation of the new laws and key institutions,” said Mati. Until last week, Kibaki and Raila were at odds over the composition of the National Police Service Commission, the body mandated to recruit the Inspector General of the National Police Service and his or her two deputies.

Iteere and CID director Ndegwa Muhoro are technically in office illegally while Administration Police Commandant Kinuthia Mbugua has resigned to run for Governor in Nakuru County. Although the National Police Service Act provides procedure for appointing an Inspector General even without the Commission, President Kibaki and the PM kept the country guessing on the appointments.

There are also diverse opinions as to whether changes at the top hierarchy in the police should be made with only six months to elections. Those against the changes say the institution is too sensitive and critical for the polls to be stirred at this moment. Others insist it is a constitutional requirement, which is long overdue.

Mr Macharia Njeru, chairman of the Police Oversight Authority (POA), said the Inspector General must be appointed before the General Election. “Parliament must fast track the process of appointing members to the National Police Service Commission, as the security of the people and the country is important as we go to the electioneering period,” said Njeru.

MONITORING PARTIES

“It is good the principals have agreed on the names and forwarded the list to Parliament, but MPs must know that the matter is weighty and needs to be dealt with at the earliest opportunity,” he added.

Ms Ndung’u’s official term ended in April after being in acting capacity since December last year. The process of picking Ndung’u’s successor stalled in Parliament after names for nominees for a committee to pick a replacement was tabled in the House well after the due date.

The office is to regulate, monitor, investigate and supervise political parties to ensure they comply with the law, manage the Political Parties’ Fund, ensure publication of audited annual accounts, and verify and make public the list of parties’ membership.  Mr Willis Otieno, programmes manager at the Electoral Institute for Sustainable Democracy in Africa, says the political class wants weak institutions in place ahead of elections to preserve their power.

Otieno says the registrar is finding it increasingly difficult to enforce the law fully because she is only in office in an acting capacity. The registrar maintains a list of parties and their symbols, checks against double membership, and investigates complaints.

A Nakuru High Court suspended the appointment of Mumo Matemu as the EACC chairman in May, after a petition by a lobby group that held it was illegal and unconstitutional. It had, however, been approved by Parliament and gazetted by President Kibaki.  Matemu and two other commissioners Jane Onsongo and Irene Keino have not taken up office after court stopped their swearing-in.

The matter has since been referred to the Chief Justice for direction and the office, together with those of two other members, remain vacant.

The EACC’s determination of candidates’ unethical conduct, including corruption, could end some political careers. Eight commissioners of the National Cohesion and Integration Commission (NCIC) must also be appointed after terms of the current holders lapsed last week, including the chairman, Mzalendo Kibunjia.

The NCIC was without a deputy chairman after Mary Onyango died on March 31. At least two cases related to hate speech involving MPs have been initiated by the NCIC, raising a storm in political circles.

But former Law Society of Kenya (LSK) chairman Okong’o Omogeni, and Limuru MP Peter Mwathi say it would be illegal for Parliament to extend the term of NCIC commissioners.

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“The law does not allow Parliament to extend the term of office for the commissioners, as their contracts have expired. If that happens, then there would be enough grounds for someone to move to court and challenge it,” Omogeni said.

Omogeni and Mwathi said Parliament should have earlier initiated the process of extending the term of the commissioners earlier than last Friday.

“I have had the opportunity to travel around the country for various functions and I have heard leaders issue inflammatory statements yet no action has been taken against them. The former NCIC commissioners performed dismally and their term should not be extended even for a day,” Mwathi said.

But Assistant Minister Richard Onyonka said the term of the commissioners should be extended because the country is preparing for elections on March 4.

“I strongly believe that NCIC could do better if it is given the powers to prosecute so that the commission is not seen as a kangaroo court that vilifies leaders in public yet it cannot prosecute them,” said Onyonka.