The Election Observation Group – ELOG issued a statement on the current electoral issues as follows;

1. Call to disband/reform IEBC by a number of Electoral Stakeholders

The Elections Observation Group (ELOG) stands for Credible, Peaceful, free and fair elections. Elections are discredited for a number of critical reasons. Key amongst these is the credibility of the institution managing the process – the elections management body, in Kenya, the IEBC.  The “credibility gap’ – the diminished public confidence in the integrity and diligence of for many electoral institutions and their activities – is a common problem for EMBs across the world

There are many EMB models used the world over to manage elections mainly based on the local (manly political) contexts that play out in each respective country. The independent model which is employed in Kenya presumes among other pertinent issues that the EMB can be trusted to conduct elections without undue influence by other parties/entities.

Over the past month, Political pressure has been exerted for the IEBC to be at least reformed and at most disbanded as a result of credibility concerns. The main opposition coalition in the country, Coalition for Reforms and Democracy (CORD) has led the calls through well publicized weekly street demonstration against the IEBC which although initially peaceful have culminated in the death of 3 people being shot by police as they tried to stop the demonstrations, terming them illegal. Other stakeholders such as the Interreligious Council, the Central Organization of Trade Unions (COTU), the Law Society of Kenya and a number of leading Civil Society Organizations, have weighed in on the matter with some calling for reforms while others out rightly calling for the disbandment of the Commission.

The issues cited for the discrediting of the IEBC range from the handling of the 2013 general elections where a number of issues such as the mismanagement of electoral technology have been advanced, the handling of by-elections especially the recent ones in Kericho and Malindi and the handling of CORDs Okoa Kenya Initiative which intended to call for a referendum that sought to address a number of electoral issues before the next elections. The other issue that has consistently been raised has been the so–called the ‘chicken gate” scandal, where a number of the commissioners have been implicated in a procurement corruption scandal involving a UK firm. While action has been taken on the UK side, nothing seems to have taken place on the Kenyan side despite files of the cases being deposited at the EACC and DPP desks.

Further other issues have also been raised. There are questions brought about by the low turnout in the voter registration campaigns and whether this is indicative of low confidence levels that may result in widespread voter apathy. Lack of clarity on the voter register as evidenced in the recent by-elections in Kericho and Malindi where there was alternate use of the electronic poll book (EVID) and the manual register.

Lastly, even as the debate on whether some or all the commissioners should be replaced, we still do not have a clear procedure on the appointment of new commissioners and with time running out in terms of preparations to the 2017 elections, this may bring about another protracted process between the political players.

The Government and the ruling party, Jubilee, have insisted that the law be followed in addressing the issues raised so far.  They insist that the laws on the removal of constitutional commissions be followed using the laid out parliamentary process.  The opposition decries the ‘tyranny of numbers” in parliament as an impediment to objective debate and resolutions to the problem despite the many successes that the 11th house has collectively agreed on.

Thus an electoral stalemate in our hands

2. Transitional issues in the Judiciary

Apart from the IEBC, the other institution that comes into focus in respect to the electoral process is the Judiciary. The Judiciary played a critical role not only in determining the elections petitions of the 2013 general elections within the specified period, but also through its highest organ, The Supreme Court, Determined the presidential petition in the highly contested race. The Supreme Court has also played a key role in giving advisory orders on pertinent constitutional issues key amongst them being the provisions of the two-thirds rule and a raft of other interpretations.

Based on their experiences of the 2013 electoral disputes, the judiciary set up a working committee to address the issues obtaining from the same as well as the development of proposals on legal reforms. Early this year, the Court, while launching their strategic plan, made the committee a substantive unit that will address all judicial electoral matters in the new cycle.

Despite the above positives, a number of events have conjured to cloud the judiciary ability to arbitrate over electoral disputes and attendant legal issues. First, with the early retirement of the Chief Justice later this month, seeming bitter succession battles have begun. Confounding the issue further, is the fact that the deputy Chief Justice is currently embroiled in court battles over her retirement age, battles which seem to have split the Supreme Court into opposing camps.

The other issue which affects the integrity of the highest court in the land is the bribery claims on one of the senior judges, Justice Philip Tunoi, who is accused of taking money to influence the outcome of a gubernatorial seat petition. If proven to be true, the case may implicate more judges in the Supreme Court bringing nearly the entire bench into disrepute. This does not augur well for the electoral process.

Further, and as raised by ELOG in its 2013 Elections Report, the issue of the threshold needed to validate or invalidate an election result in a petition has not yet been addressed by the judiciary. Clear jurisprudence on this matter is needed before the next elections come by.

Lastly, over the last few weeks in which the police engaged the anti –IEBC protesters in what has been christened ‘tear gas Mondays’, a number of violations have occurred in respect to court orders. First the Courts gave orders allowing CORD to hold a parallel rally during the Madaraka day celebrations. The police declared the event illegal at first and wrote letters implying the same. They would later rescind the same albeit reluctantly. The courts also gave orders on the illegality of the proposed demonstration slated for the coming Monday, CORD has quashed the same and said they will go on with their plans in disregard to the orders.

This state of affairs is indicative of a banana republic where no laws hold water and impunity reigns supreme. It is a situation which cannot be allowed within the new constitutional dispensations and a recipe for chaos.

 3. The two thirds gender requirement

ELOG has noted that implementing the ‘Two-Thirds Gender principle’ is meeting obstacle after obstacle with those charged with the responsibility of making the change happen wavering. The National Assembly has occasionally failed to pass the Constitution Amendment Bill of 2015 which seeks to ensure that no gender occupies more than two-thirds of the parliamentary seats. What should be a question of inclusivity and human rights has been whittled to a game of musical chairs where each available opportunity is taken away successively. With time ticking away there is every possibility of dissolution of the 11th parliament if nothing gives by the 27th of august this year.

ELOG will support public interest litigation against parliament if the issue is not addressed within the given timelines.

It’s a matter of a month and a half from now.

4. Rumblings around the Elections Date

During their retreat in the Coast for a national forum last month, Members of the County assembly and Senators argued that the next general elections to be held on the 8th of August 2017 would violate their tenure in office as it would happen within their five year term limits as directed by Article 177 (4) of the Constitution. This is despite clear provisions of Articles 102 and 177 (1) which state and affirm the above dates.

While the date of the next elections is not in doubt, there does seem to be a lacuna in the law that can be exploited by those who may wish to defer the elections beyond the provided dates. Clarity on this should be given by both the IEBC and the Judiciary in terms of interpretation of the law.

5. Other obtaining issues

ELOG condemns / deplores the excessive use of force by the Kenyan security services and the violence that has rocked around the weekly demonstrations in the vicinity of the IEBC offices in Nairobi and other places around the country. We urge the security services to exercise restraint during demonstrations and to protect the rights of free speech, assembly, and political participation guaranteed by the Kenyan constitution.

The deaths and injuries of Kenyan citizens were tragic and unnecessary. ELOG urges for a speedy investigation into the actions of the security services and to hold accountable anyone responsible for the use of excessive force. Destruction of property and attacks on bystanders by anyone during demonstrations are also unacceptable.

ELOG calls for all Kenyans to reject violence. We again urge/call for a constructive and inclusive dialogue to resolve the stalemate between the government and the opposition over issues raised regarding the Independent Electoral and Boundaries Commission (IEBC) and the electoral process to ensure that the 2017 elections are free, fair, and peaceful.

Hate speech is the precursor to violence and has (been) every electioneering year the country. We urge the National Cohesion and Integration Commission (NCIC) which is mandated to promote ethnic harmony and to investigate complaints of ethnic or racial discrimination or any issue affecting ethnic and racial relations under Section 13 of the 2008 National Cohesion and Integration Act – to seriously hold people accountable for inciting people to violence and hatred.