2014-10-26
Today from Hiiraan Online:  _
Disbanding IEBC requires rigorous process, say experts

  President-elect Uhuru Kenyatta displays his certificate after receiving it from IEBC chairman Isaack Hassan at the Bomas of Kenya, Nairobi March 9, 2013. BILLY MUIRURI.

Daily Nation
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 commissioners.

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 soon.

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.





Post your comments