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EU Observers: Don’t rush law changes to meet October 26 poll

In a statement calling on Kenya leaders to commit to democratic competition and institutions, the EU said decisive improvements in the electoral process are still achievable if Kenyans come together in a constructive manner/FILE

NAIROBI, Kenya, Oct 3 – The European Union Election Observer Mission (EU-EOM) has called on the Jubilee Party and NASA leaders to drop their hardliner stance to pave way for negotiations to agree on sticky issues.

In a statement calling on Kenya leaders to commit to democratic competition and institutions, the EU said decisive improvements in the electoral process are still achievable if Kenyans come together in a constructive manner.

“The intensifying accusations between political rivals and against the institutional pillars of the democratic process, in particular the Judiciary and the Independent Electoral and Boundaries Commission (IEBC), have led to escalating tensions and risk derailing the election.”

“Stakeholders should be consulted in order to provide for reforms being supported and implementable. Election reform is always stronger when there is broad political consensus,” The EU-EOM said in a statement sent to newsrooms on Tuesday.

The Observer Mission which is led by European Parliament Representative Marietje Schaake cautioned that late amendments to electoral legislation risks being politically polarizing, undermining the predictability of the law, reducing quality of legislation and generating implementation problems.

The EU says that enactment of the Election Laws (Amendment) Bill and the Election Offences (Amendment) Bill 2017 should be put off, because it would have serious implications on the fresh presidential election.

“The EU-EOM therefore suggests that for the sake of consistency with recognised good practice and for the smooth running of the current electoral process, the proposed legal reforms are tabled after the current election. This will enable a more comprehensive approach to amendments, and more time for debate, consultation and legislative development,” read part of the statement.

The Election Laws (Amendment) Bill 2017, among others issues, seeks to dilute the position of the IEBC Chairman, entrench election results forms, provide for both manual and electronic transmission of the results – with the manual prevails in case of a contention – and punishment of candidates who withdraw from a repeat presidential election.

The EU team further noted demands on changes to the election administration will place an extraordinary burden on the IEBC because they cannot be met within the constitutional requirements for the fresh presidential poll by October 31.

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The EU-EOM is instead suggesting that contenders focus as a matter of urgency on practical and meaningful integrity measures that can be realistically undertaken to strengthen operations and systems.

The EU-EOM says an analysis of the two Bills shows that there are some potentially positive proposals; which include attempting to clarify the status of keyed-in results and harmonising existing legislation with jurisprudence. Some proposals in the Bill warrant additional elaboration and clarification.

For example, the EU says the electronic and manual transmission of tabulated results provides an additional safeguard, but notes “it goes against the recommendations of the Kriegler Report in stating that manual results automatically prevail (thereby risking potential manipulations not being considered).”

Importantly, some proposals weaken safeguards without qualification. For example the bill states that failure to electronically transmit or publish results would not be a basis for invalidation. While this allows for normal operational shortcomings, it also undermines crucial transparency measures. Changes to the composition of the IEBC and the powers of the chairperson are not appropriate mid-way through an electoral operation.

The EU Observers raised the red flag on the phrase “absence of the chairperson for any reason” which it found to be insufficiently defined, and will therefore be open to arbitrary interpretation.

They also termed the reduced requirements for a quorum risk inconsistent decision-making.

The amendment proposes that the quorum for IEBC meetings be lowered from five to half of the existing members but not less than three.

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