Sunday, March 17, 2013
The reputation of Kenya’s electoral commission is on the line as
Supreme Court gets ready to adjudicate on the petition challenging the
victory of President-elect Uhuru Kenyatta and his deputy William Ruto.
The petition filed by the presidential candidate
of the Coalition for Reform and Democracy (Cord), Mr Raila Odinga, pokes
holes at the electoral process and wants the court to “declare as null
and void the whole electoral process” that led to Mr Kenyatta’s victory.
But unlike its predecessor, the Electoral
Commission of Kenya (ECK), the new commission, the Independent Electoral
and Boundaries Commission (IEBC) cannot be disbanded easily, even if
the court finds out that the problems with the electoral process were of
such a magnitude to affect the final results.
It will still be the job of the IEBC to conduct
that fresh poll. That’s because, the Constitution gives the
commissioners a sort of security of tenure for six years.
Mr Stephen Mwenesi, a lawyer, told the Nation
in an interview that it will be foolhardy to disband the commission
simply because there’s an implication that they bungled the election.
That’s if the courts agree with the petition.
“The fact that the IEBC managed a process that
caused many people –12,330,028—to turn up and vote, means that they have
the capacity to handle the elections. If the Supreme Court orders a
fresh election, IEBC will have to respect that ruling and do it (hold
elections) again,” said Mr Mwenesi.
To kick out the commissioners, one will have to
file a petition for their removal to Parliament, which will then sit and
if the House approves the petition, the President will look at it and
appoint a tribunal which will then have the job of deciding the fate of
The process is so elaborate, and difficult, but
not impossible. Unless the commissioners resign, there’s no guarantee
that any of the nine IEBC commissioners will be going anywhere anytime
Mr Mwenesi said the commissioners were appointed
after a thorough vetting and approval process, and that they were found
fit to execute the mandate of the electoral commission.
If the Supreme Court orders a fresh election, the
taxpayer will have to pay for it. It is estimated that a fresh poll
could cost an extra Sh6 billion.
“The country can afford another election because we legislated for it,” said Mwenesi.
He added that the election timetable provided for a
run-off, and that even under the Assumption of Office of the President
Act, there were timelines that had taken on board the petition and the
eventuality of a run-off.
“There was too much hype around this election …so
when people say the country cannot afford another election, it is
perhaps because of the exhaustion that went into the preparation (and
execution of the March 4 polls),” he said.
Dr Luis Franceschi, the Dean at the Strathmore Law
School in Nairobi, said Cord must have looked at all the possible
outcomes and their “legal, political and social” consequences before
filing their petition.
The possibility and consequences of winning the
petition and losing in the fresh poll; or of winning the case and
winning the fresh poll; and that of losing the case, must all have been
discussed before the petition was filed on Saturday.
“Certainly, they are looking for justice. But
that's the challenge in this case: what will justice mean and at what
cost? When does it stop being justice and turn into injustice? For
example, to dispense justice to Cord (if there’s a fresh election) the
taxpayer may need to empty the pockets,” said Dr Franceschi.
“What is certain is that law does not operate in a
vacuum but in a social context, so the Supreme Court will have this
very much at heart when deciding (about the petition),” Dr Franceschi
said in a separate interview with the Nation.