President won’t break the law to resolve IEBC impasse

In 1997, then President Daniel arap Moi had the exclusive right to appoint commissioners to the now defunct Electoral Commission of Kenya (ECK); a power he derived from the supreme law.

He however settled for a gentleman’s agreement with the Opposition allowing them to nominate their representatives to the polls team. Much as Moi was acting out of pressure from the Opposition, the law was on his side. By allowing the Opposition to name representatives, the former President was just acting in good faith.

Then in 2006 something dramatic happened. Then Constitutional Affairs minister Martha Karua refused to listen to then Opposition leader Uhuru Kenyatta when he asked for a consultative forum to appoint some commissioners whose terms had expired. Kenyatta was asking for a consultative process in the spirit of the Inter-Party Parliamentary Group (IPPG). Karua would hear none of it, saying there was no law called IPPG. She went ahead to remind Mr Kenyatta that Moi had retired and a new regime was now in power.

She said it was the president’s business to appoint commissioners. Karua used the same law that was in existence under Moi to appoint her cronies. Fast forward to the current situation. Remarkable changes have happened. When the Constitution was promulgated in August 2010, it created independent institutions, independent of even the Presidency, and only answerable to Parliament.

These include the DPP, the Auditor General, the Judiciary, the Inspector General of Police through the National Police Service Commission, and of course the Independent Electoral and Boundaries Commission (IEBC). There is a reason the word ‘independent’ is an integral part of IEBC’s name. It means this institution is insulated from the interference from the whims of political players.

The hiring and firing of commissioners was anchored in the Constitution and Article 251 provides for the procedure on how to do so. These independent commissions are answerable to Parliament through its committees. For IEBC it is the Justice and Legal Affairs Committee in the National Assembly and in the Senate, the Legal Affairs and Human Rights Committee chaired by Samuel Chepkong’a and Amos Wako respectively.

Anybody who wants to oust them is required to send a petition through these committees. As Jubilee, we have issues with some independent institutions but if we want to do anything about them we must follow the law. So if the agenda of Mr Raila’s letter is to tell the President to interfere with the independence of IEBC then he is inviting the President to break the law. The President has no locus standi to send home IEBC commissioners because the commission does not take orders from him. What Raila would then be suggesting in his letter is that the President should undertake a constitutional coup. He wants the President to set aside the law and kick IEBC commissioners out of office. This is untenable.

CORD also needs to be clear on what it wants and stop engaging in double-speak. In occasions that the commission’s decision is favourable to the Opposition, it has hailed the IEBC. Furthermore, the Opposition must stop making unfounded claims such as the unsavoury allegation that Jubilee has a pact with IEBC commissioners to rig next year’s elections and offer them plum jobs thereafter. In the same vein, it has charged that Koreans are involved in the planned electoral fraud without giving details. Which Koreans? From South Korea or North Korea? Raila has also sensationally claimed that children are being given IDs in Jubilee strongholds. Again no evidence has been provided. All these point to a coalition confronted by utter desperation given that their capacity to amount a credible challenge for the presidency has considerably waned.

Raila has already poisoned the electoral environment. His intention seems to be to take the country back to the dark day. The Jubilee government will put its foot firmly down and will not allow this to happen. We support members of the diplomatic corps who have counseled that law and order must prevail in raising questions about electoral architecture. I will be the first person to support a petition brought by CORD in the National Assembly if it has enough grounds incriminating the polls team.

Raila seems to have forgotten a key recommendation by retired South African Judge Johann Kriegler who led the independent review commission into the disputed presidential election of 2007 that the team overseeing the elections must be in office 24 months before elections. He and retired President Mwai Kibaki received the report. Perhaps he needs to reacquaint himself with its content.

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