Can Kenya’s judiciary and electoral commission pull it off?

By Parselelo Kantai and Patrick Smith in Nairobi
Posted on Sunday, 3 March 2013 17:40

What happens in Kenya’s 4 March election stretches far beyond the fortunes of the rival parties to the fate of the new institutions and political order established during the last four years.

“The judiciary – not just the Supreme Court – faces a very, very serious test in these elections,” the chief justice Willy Mutunga tells The Africa Report.

“Because in 2007 we were rejected, we were seen to be partisan. We’ve been building confidence in the institutions, the entire judiciary.”

Mutunga explains that there are clear legal rules that will have to be followed on any of the electoral disputes. One of the rival presidential candidates, Raila Odinga, has already said that he regards the reformed judiciary as reliably impartial.

In the 2007 elections Odinga told his party not to bother contesting the result because of the pervasive political bias of the judiciary.

On the coming elections, Mutunga takes a fairly apocalyptic view: “We all realise that if our judiciary is rejected yet again then the institution will never survive.”

But he is optimistic that the political reforms and the new constitution have changed the climate.


Keeping the three arms of government separate and independent should not rule out constructive cooperation, says Mutunga: “I see us protecting the independence of the judiciary but also realising that you’ve got to talk to the ministry of finance, to parliament and that sometimes you might also ask the president to intervene.”

A dialogue between the arms of state is important, insists Mutunga: “As a matter of fact, President [Mwai] Kibaki has never called me about a case. So the hotline is not hot – nobody uses it!”

As chief justice, Mutunga joined discussions last year with businesses and President Kibaki about how to ensure the elections were credible and peaceful.

He added that the judiciary is committed to helping the Independent Electoral and Boundaries Commission (IEBC).

For example, it has allocated special courts to deal with all the electoral disputes quickly.

Any petition challenging the presidential election result must be submitted within seven days of the announcement of results and will be considered by the Supreme Court for a maximum of 14 days.

All other disputes are to be heard by the specially organised fast-track courts that will have six months to complete their adjudications.

There is, however, nervousness about how the IEBC will fare.

Led by Ahmed Issack Hassan, the IEBC has enjoyed public confidence since August 2010 when it ran the referendum on the new constitution.

It then held several by-elections with textbook efficiency.

But troubles began last year over a tender for biometric voter registration kits.

After anomalies were exposed, the government intervened and awarded the tender to France’s Safran Morpho at almost double the stipulated cost.

The delayed voter registration was com- pressed to one month instead of three.

James Oswago, the IEBC chief executive, says it is absolutely committed to transparency: “In fact, I am not aware of any public procurement officer who has referred a controversial process to the government for arbitration. I did. You have not heard anybody going to court for corruption linked to this process.”

Unlike the old Electoral Commission of Kenya, whose top officials were in the president’s gift, the IEBC has nine one-term commissioners including Oswago, who acts as secretary to the board.

Each commissioner was selected after consultations between President Kibaki and Prime Minister Odinga, the two main rivals in the 2007 election, and then vetted by parliament.

“We have in place structures that invalidate a discretionary announcement – a rigged vote. You can accuse the commission of inefficiency or of lateness and so on, but not of rigging,” Oswago says confidently.


But Paul Muite, a lawyer who is contesting the presidency himself, does not share such certainty: “The IEBC is not inspiring confidence. I am not sure that they have the capacity or political will to conduct credible elections.

“There are integrity questions regarding some commissioners […] the composition of the commissioners was motivated not by merit but by the coalition government’s need for ethnic and regional balance.”

Similarly, a report by South Consulting, which has been monitoring the coalition government for the Panel of Eminent African Personalities led by former United Nations secretary general Kofi Annan, raised questions about the IEBC’s capacity.

It questioned its capacity to act decisively on electoral disputes and pointed to its inability to censure rogue parties and politicians during the chaotic party primaries in January.

In January, the IEBC vetted and registered eight presidential candidates, rejecting two on technical grounds.

Among those approved was Uhuru Kenyatta, although he was facing a local case challenging his candidature on integrity grounds.

The case is unlikely to be decided before the presidential elections.

It seems the IEBC did not want to prejudge it, so was happy to let the courts decide.

Pressure is certain to build on the new and inexperienced IEBC as elections approach and then again in likely second round elections.

The courts, determined to uphold their independence, will probably act as a buffer against violent street protests.

The police force, overstretched as it is and caught in a maelstrom of reform, resistance and warring political factions, may not.

Voters may find themselves caught between these two institutions●

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