Kenya: Can the new IEBC conduct free and fair elections in August 2022 ?

By Victor Abuso
Posted on Friday, 17 September 2021 11:43

An Independent Electoral and Boundaries Commission (IEBC) official stacks ballot boxes at a tally centre in Nairobi, Kenya October 27, 2017. REUTERS/Siegfried Modola

Kenyans are now placing their hopes on the newly constituted Independent Electoral and Boundaries Commission (IEBC) to conduct free and fair elections in August 2022.

For almost four years, the electoral body has had only three commissioners out of the seven constitutionally required to fully run the political organ. The others had resigned from their positions.

  • In April 2018, commissioners Margaret Mwachanya and Paul Kibiwott Kurgat, led by the then IEBC vice chairperson Connie Maina, left the polls body saying they had no faith in the chairman Wafula Chebukati.
  • Just before the repeated presidential poll in October 2017, another commissioner, Roselyn Akombe had also quit. In her resignation letter sent from New York, Akombe said she made the decision because she believed that the repeat election would not meet the basic expectations of a credible exercise.

Even so, less than a year to the 2022 presidential election, the IEBC now has a fully constituted team. President Uhuru Kenyatta appointed four new commissioners after they were approved by Parliament following interviews with a selection panel.

The four who made the cut

Out of the 36 candidates who were shortlisted, the four who made the cut are Juliana Cherera, Francis Mathenge, Irene Masit, and Justus Abonyo. They have already been sworn in to serve in the IEBC for the next six years.

One question they were asked during their interviews is how they will make sure that the 2022 election will be free, fair and credible. They were also asked how they will endeavour to earn the public’s trust as they organise the polls.

The latter is a fair question given that Kenya has a shaky history with regards to how the commission has managed previous elections. In particular, the release of presidential results for past elections has led to post-election violence due to lack of trust in the electoral body.

How electoral mismanagement led to violence

In December 2007, following the announcement of the presidential election results by the then Electoral Commission of Kenya (ECK), violence broke out across Kenya. The commission had declared the Party of National Unity (PNU) candidate, Mwai Kibaki, as the winner.

His leading opponent, Raila Odinga – leader of the Orange Democratic Movement (ODM) – rejected the results, accusing the electoral commission of rigging the election in favour of the incumbent, Kibaki.

The violence left over 3000 people dead and thousands displaced from their homes. It was not until the formation of a coalition government between Kibaki and Raila that a semblance of normalcy was restored.

The electoral head at that time, the late Samuel Kivuitu, when asked who won the election and if he believed it was free and fair, said he did not know who won and in fact, he only announced results that he had received to relay to the public.

The Kriegler Commission, led by retired South African Constitutional Court Judge Johann Kriegler, later reviewed the conduct of the electoral commission and concluded that it was difficult to know who won the 2007 presidential polls.

However, according to Kriegler’s team, the electoral body lacked the institutional independence required to sufficiently discharge its mandate because various political actors had influenced the commission.

What is the IEBC’s mandate?

Founded as an independent regulatory agency in 2011 under the Kenyan constitution, the IEBC has the following mandate:

  • To conduct or supervise referendums and elections to any elective body or office established by the constitution.
  • Other than that, the IEBC, has a responsibility of ensuring that there is continuous registration of voters and revision of the voter’s roll.
  • Delimitation of constituencies and wards.
  • Regulation of political parties’ processes.
  • Settlement of electoral disputes.
  • Registration of candidates for elections.
  • Voter education.

In 2017, the IEBC – which replaced the disbanded ECK – found itself at the centre of another election crisis, after the Supreme Court nullified Kenyatta’s win. A majority of the judges, led by the now retired Chief Justice David Maraga, found that the IEBC had failed, neglected and refused to conduct the presidential election in a manner consistent with the constitution.

It was revealed that the server, which stored the presidential results, had been tampered with to change the tally of the votes. The IEBC said the hackers’ bid had not been successful. However, the commission found itself on more shaky ground after their top IT expert, Chris Msando, was murdered and the opposition insisted that the election had been rigged.

Should Chebukati stay or go?

Chebukati, the commission’s current chairperson, is facing a court battle – as well as a moral one – over whether he should lead the 2022 general election. A voter, Samwel Clinton Elijah, has filed a petition seeking to have Chebukati blocked from overseeing the polls on grounds that under his supervision in 2017, the Supreme Court nullified the election results.

Politicians from the ODM party also argue that it’s morally wrong for Chebukati to preside over another election. Instead, the party insists, he should allow the new commissioners to take over. “It is not right for him to remain as the commission’s chairman; he should resign,” says John Mbadi, ODM’s national chairman.

Even though we have new commissioners, I’m worried that they might be intimidated by politicians; they should stand their ground.

However, Chebukati might not succumb to such pressure as he has always said he will remain in office until his time as commissioner expires in January 2023.

For Aden Duale, a legislator allied to the ruling Jubilee party, there is no reason why Chebukati should resign over the last election. He believes such attempts to push him out would compromise the upcoming elections. “Let us not discuss three against four; let these seven people move as one and give this country a free, fair and credible election.”

To restore the faith of the public, some political pundits agree that the IEBC needs someone else to lead the commission. Suba Churchill, coordinator of the National Civil Society Congress, has been observing elections in Kenya over the years and tells The Africa Report that “Kenyans need to see new faces talking about the next elections”.

Furthermore, Suba says, to restore faith to the voters, “the commission has to engage all stakeholders” like the political parties, civil society and religious leaders in all processes it undertakes to ensure transparency. “The commission has a chance to redeem itself and earn public trust again; the commissioners should be transparent,” he says.

Lessons from history going into 2022

With this history in mind, the IEBC has a heavy task to ensure that it earns trust from the public as it prepares for next year’s election.

As of May this year, the number of registered voters stood at 19,687,885. Another four million voters, especially the youth, are expected to register ahead of the 2022 vote.

Hilda Ajema, 23, a Nairobi resident who will be voting for the first time, says she wants the current electoral commissioners to learn from history and ensure that the elections are credible and peaceful.

Paul Nzioki, 24, from Kitui County – east of the capital Nairobi – will be casting his vote for the second time. He says he is worried about the independence of the commissioners, and whether they will have the stamina to reject intimidation from politicians. “Even though we have new commissioners, I’m worried that they might be intimidated by politicians; they should stand their ground.”

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