July 2016

The Joint Committee on Electoral Reforms is formed

The bipartisan team on Electoral Reforms co-chaired by Senator Kiraitu Murungi and James Orengo held its house-keeping meeting five days after its formation. The motion to legally mandate the joint committee on electoral reforms was passed in Parliament on 4th of July. The committee is expected to come up with a raft of reforms that will ensure 2017 elections are conducted in a free and fair environment. The proposed committee is bipartisan and enjoys full support from both sides of the political divide.

6th July: The appointment of the team was delayed over disagreements on a parallel process started by the National Assembly’s Justice and legal Affairs Committee (JLAC). On 15th July, the Orange Democratic Movement (ODM) – the largest party in CORD threatened to resume protests over lack of what they termed as genuine talks on electoral reforms. CORD fears that the legal committee may duplicate the supposed job of the bi-partisan committee, particularly, if it recommends the removal of the IEBC commissioners as it would make the joint committee pointless. Cord accused the Jubilee ruling coalition of in-subordinating the bi-partisan committee by allowing JLAC to continue its business as usual.

The JLAC drafted the IEBC (Amendment) Bill that gives political parties a say in appointment of IEBC Commissioners in future. The Samuel Chepkonga (URP) led JLAC team also started considering a petition on the removal of IEBC commissioners presented by Barasa Nyukuri and is expected to table a report.

The two sides have differed on whether the bi-partisan committee on electoral reforms should investigate the commissioners conduct afresh or use the already available information. The dissonance first surfaced as Parliament awaited to debate the motion to establish the joint Committee to decide on IEBC reforms. Cord maintains that IEBC has lost its credibility while Jubilee insists on following the due process in dealing with the team.

On 25th – 26th July, The negotiated bipartisan committee received public views at County Hall in Nairobi and is expected to table its report in Parliament within 25 days.

12th July: Poll showed Public confidence in IEBC dropped

In the intervening time, an opinion poll conducted by Synovate revealed Kenyans’ confidence in the ability of the Independent Electoral and Boundaries Commission (IEBC) to conduct 2017 elections has dropped over the last seven months from 40 per cent last November to 34 per cent in June 2016. The findings show that both Jubilee and Cord supporters have gradually lost confidence in the embattled electoral body over the period.

For instance, among Jubilee supporters, confidence in the electoral body waned from 63 per cent in November last year to 57 per cent last month. Among Cord supporters, the confidence level is at an all-time low of seven per cent, down from 15 per cent seven months ago. The poll was conducted between June 4 and June 18 at the height of protest rallies called by Cord leaders to push for the removal of IEBC commissioners.

Furthermore, reports emerged that 10 Independent Electoral and Boundaries Commission (IEBC) staff resigned in June. The staff included returning officers who left possibly due to the tension and uncertainty that the body has been subjected to. There is also a proposal to have the body’s staff vetted for viability which might cause jitters. The commissioners were also said to be negotiating their exit.

IEBC commissioners told a parliamentary committee they are ready to leave office as the perception towards them is so negative. The commissioners said that it will be difficult for them to oversee the next election. The commissioners said that they are ready for a negotiated exit or removal through due process. During the emotive proceedings one commissioner wiped tears from his eyes as he described the price he will pay due to the unfounded accusations against him.

On 19th July, the Ethics and Anti-Corruption Commission (EACC) discharged electoral chairman Isaack Hassan from corruption allegations in the Chickengate scandal. In relation to the same scandal, the anti-graft body found evidence of criminal culpability against four people -James Oswago, Trevy Oyombra, Hamida Ali Kibwana and Kenneth Karani. On March 8 this year Hassan was questioned on the scandal where he defended his innocence.

Meanwhile, the former IEBC Chief Executive Officer, James Oswago has accused EACC of using him as a scapegoat in the ‘Chickengate’ scandal. Oswago said that the investigations on the scandal were conducted selectively.

15th July - Auditor-General’s report on IEBC discredited and petition against commissioners defeated

The opposition remained opposed to the National Assembly’s Justice and Legal affairs Committee’s (JLAC) continued parallel process to address electoral reforms especially their plan to table a report after the scrutiny of Barasa Nyukuri’s petition. Shortly after the petition’s scrutiny started information cited from the Auditor General’s report was discredited by a Canadian diplomat Tim Colby and the IEBC chairman who sought a court order, seemingly giving credence to the opposition’s claims about the need for to investigate the commissioners afresh.

Both submissions attacked the credibility of the Auditor-General’s report, which was the main plank of the petition and the basis for the possible finding that the chairman and the eight commissioners were incompetent. Colby highlighted 21 points in the report where the Office of the Auditor-General made mistakes by failing to interview those mentioned, such as the Attorney-General, the main negotiator; wrongly compared costs and alleged failure to investigate concerns. On the other hand, the IEBC chair sued the Auditor-General on the basis that his side of the story wasn’t sought before the report indicting him was finished and submitted to Parliament.

The House Business committee froze debate on the report that cleared the electoral commissioners. This halted, for some time though, the debate over which of the two parallel committees of the House should spearhead electoral reforms. The suspension of the debate eased the conflict between the bipartisan joint Committee and the JLAC. The report shall be debated when the joint committee finishes its work.

Even so, speaking in a public lecture at Strathmore University, the IEBC Chief Executive Officer Ezra Chiloba warned that delays in deciding the fate of the IEBC may have a negative effect in preparations of 2017 elections. Chiloba said that fundamental issues concerning the body should be decided upon to avert a crisis.

25th – 26th July: Public submissions regarding the IEBC

Submitting its views, the Commission on Administrative Justice (Ombudsman Office), stated that commissioners of the IEBC commissioners should be paid their full benefits if they agree to leave voluntarily. Chairman Otiende Amollo said the joint select committee on electoral reforms should make that offer to the commissioners. Omollo also rubbished the claim that picking a new IEBC team close to elections is hazardous.

In addition, the Ombudsman said the IEBC should be reconstituted to include four non-Kenyans. In a submission to the joint select committee on electoral reforms he asserted that a foreigner should chair the commission in order to “cure the present geo-politics and mistrust”. He added that foreigners will inspire public confidence and objectivity.

Addressing the media at Ufungamano House, religious leaders proposed the vetting of all IEBC senior staff. In addition, they warned that the rivalry between the National Assembly's JLAC and the joint parliamentary committee could derail efforts to correct Kenya's electoral system. They also warned against charging the election date.

Clerics proposed to have election results for all seats announced at the constituency level to be final as one way of taming rigging. They also proposed the number of electoral commissioners be reduced to five, and work on a part-time basis. Clerics working under the auspices of Multi-Sectoral Forum with civil society organisations’ drafted two Bills - the Election Laws (Amendment) Bill and Constitution of Kenya (Amendment) Bill - to effect a wide range of changes on electoral reforms before the next polls. The two bills were presented to the joint committee on electoral reforms. The team also wants electronic results to be considered while announcing the final outcome. In case of a presidential election petition, the team has proposed that the time be extended from 14 to 30 days. The team also wants voter register inspection extended from 14 to 30 days.

In his submission, the Attorney General said that IEBC commissioners should be persuaded to quit in public interest. AG told the joint committee on electoral reforms that compensation should be regarded if the commissioners win a court battle for dismissal pay after voluntarily leaving office. On the other hand, the AG cautioned the committee against dismissing secretariat. The AG’s opinion was sought to in on the issues of balancing national interests and rights of the affected IEBC officers.

Will a workable solution to the electoral crisis be arrived at in time to adequately prepare for the election?