ISSUE NO. 26, SEPTEMBER 2017

KENYA NEEDS TO DEVOLVE ITS ELECTION MANAGEMENT

Peter Kagwanja

After the September 1, 2017, Supreme Court ruling that annulled President ’s victory in the August 8, 2017, general election, Prof. Kagwanja, observes the controversial ruling and asserts that the ruling by the Majority Judges has out rightly exposed the tantalizing liberal idea of “independent” electoral institutions as a tragic shambolic fiction and a threat to the stability of fragile states.

Thus, Kagwanja recommends that Kenyans should begin discussing the devolution of the management of the elections to prevent “irregularities and illegalities” commissioned by an inept IEBC from undermining the sovereign will of the people, pushing the country to a civil war and undermining our nationhood.

The disarray and mayhem that rocked and interests of the political class. The ’s Electoral Commission after costs of spineless election managers to September 1, 2017, Supreme Court national security and nationhood are dire. Judgment that controversially overturned Ironically, and in contrast, the Supreme President Uhuru Kenyatta’s victory in the Court’s ruling has been praised across August 8 election has exposed the as a triumph of judicial tantalizing liberal idea of “independent” independence and assertiveness. Far from electoral institutions as tragic shambolic undermining the autonomy of IEBC, the fiction and a threat to the stability of fragile Supreme Court’s order that the first (IEBC) states. and second (its Chairman) respondents in Electoral Management the Odinga v. IEBC and others petition conduct fresh elections in accordance with The country’s Independent Electoral and the self-evidently asserted the Boundaries Commission (IEBC) is now a independence of IEBC and strengthened classic text book case of the chronic failure its hand against predatory segments of by its election managers to defend the Kenya’s political class. constitutionally guaranteed independence and to kowtow to the debilitating demands

API Research Notes In exercising its independence, the election draconian demands a full audit of the commission named October 17 as the date commission's IT systems, and scrutiny of for fresh elections and embarked on its servers and network systems. preparing for the repeat polls. But unable IEBC Turmoil to assert its independence, the IEBC has remained the ground zero of cut-throat elite Naively, far from defending the power tussles and political machinations. independence of the IEBC, its Chairman, Wafula Chebukati, has appeared to play to

Opposition Coup d’etat the opposition’s game. A spur-of-the- On its part, the -led opposition moment attempt to mollify the Opposition’s has rhetorically paid lip-service to the demands by appointing a “special project “independence” of the electoral team” with Marjan Hassan Marjan as management body. In practice, its coordinator to run the repeat election was stalwarts have used high-handed dead in water. demands, threats of mass action, invoked the populist language of “consultations” This threw the Commission into confusion and embarked of fierce lawfare in the form and disarray and was vehemently opposed of numerous ruinous court cases to by the Jubilee leadership. A leaked memo undermine the constitutional independence from Chebukati to the Commission’s CEO, and autonomy of IEBC and exercise undue Ezra Chiloba, revealed a Commission split influence in its policy choices and direction, right through the middle—a phenomenon especially in staffing, procurement of that is ominously reminiscent of the badly services, finance, and election divide Electoral Commission in Ivory Coast implementation. that threw the West African Country to civil war after the calamitous November 2010 After the September 1 ruling, its demands election. pushed the commission to the tipping point. It accused the IEBC of naming October 17 As for now, Chebukati appears to have as the date for fresh elections without calmed the waters. But he has to firmly deal consulting it—which is not a constitutional with claims galore of infiltration of the requirement for IEBC to function. Odinga commission by operatives of both sides of rejected the new timetable and gave the political divide. He has to take IEBC’s conditions for his participation in a fresh independence vis-à-vis political interests poll despite the clarity of the Supreme seriously. Court ruling. His choices are stark. He has to choose Opposition Demands between expediently kowtowing to political interests or adhering to the orders of the Among these is the sacking of several top Supreme Court on him and the officials at the IEBC, including Chief Commission to conduct an election in Executive Ezra Chiloba and his strictly line with the constitution. deputy Betty Nyabuto, and the heads of IT, voter registration and the legal team. This On its part, Jubilee is under pressure to be is a death-sentence for IEBC as currently seen to respect the independence of the constituted by law. IEBC as a strategic step to enhance the legitimacy of its expected victory in the Odinga's campaign chief, Musalia fresh election. Mudavadi, has added to this list of

API Research Notes But it is worried that the disarray, people, pushing the country to a civil war uncertainty, and vacillations in IEBC can and undermining our nationhood. lead to a muddled election that risks being Kenya is paying for the sins and excesses rejected by the opposition, thrown out by of its neo-liberals who, after the country’s the court, and triggering a chain of costly return to multi-party democracy, pushed us and abortive elections infinitum. too far into a fictitious form of the That is why President Kenyatta has come “independence” of the electoral out guns blazing. On September 8, he commission that even the world’s most called on Odinga to stop attacking the IEBC advanced democracies have not dared to and to concentrate on soliciting for votes. adopt. He also demanded that the Commissioners The United States, , stay out of the political arena and not allow Denmark, Singapore, and Switzerland themselves to be dictated to by the political have faithfully stuck to the Governmental players. “Just do your job,” he said. Model of Election— which Kenya started But what eludes Jubilee is that as currently off with—where elections are organized constituted, IEBC can neither defend its and managed by the executive branch and independence not conduct an election that implemented by local authorities. the Supreme Court legal puritans led by Human rights activists are unlikely to Chief Justice David Maraga can give a entertain Kenya’s return to the more stable clean bill of health. and still the most popular and effective Devolution of Electoral Management model in the world. In the light of this, it is time, therefore, we Ultimately, only a homegrown model of a begin discussing the devolution of the devolved Election management can bring management of our elections to forestall to an end the perennial uncertainties, “irregularities and illegalities” paralysis and security risks wrought by the commissioned by an inept IEBC from ultra-liberal model of an “independent” undermining the sovereign will of the Commissions.

©Africa Policy Institute, August 2017

Professor Peter Kagwanja is a former Government adviser and currently the Chief executive of Africa Policy Institute and Visiting Scholar at the University of . The article was Previously Published by the Sunday Nation (Nairobi) September 10, 2017, under the title, “Time to devolve election management to forestall illegalities”.

API Research Notes

About API Research Notes

API Research Notes Series publishes scientifically valid research outputs that cannot be considered as full research or methodology articles. Its aim is to provide a forum for sharing data, useful information and perspectives on topical issues of concern to the policy and research communities. Articles published under this series cut across disciplines, and include some short articles or opinion pieces that have already been published by the experts of the Africa Policy Institute. Some are brief publications, updates to previous work, abridged versions of research agendas or concept notes or brief reports of policy forums.

API Research Notes