OPINION: A wasted Damascus moment? Why the window for electoral reforms is fast closing in

When the Supreme Court of Kenya returned its verdict on the August 8, 2017 elections, there was a general feeling that we had arrived at our road to Damascus moment on electoral reforms.

In a precedent-setting and striking ruling, the Court upheld the position that an election tainted by electoral irregularities and illegalities should not be let to stand in a democracy that is constantly improving as ours.

The six-judge bench was clear in its finding that the Independent Electoral & Boundaries Commission (IEBC) ‘failed, neglected or refused to conduct the Presidential election in a manner consistent with the dictates of the Constitution.’

In his opening statement while delivering the ruling, Chief Justice David Maraga cautioned that the greatness of a nation lies in its fidelity to the Constitution and strict adherence to the rule of law.

The ruling in the end vindicated the malpractice concerns that had been raised by the opposition incumbent Raila Odinga who was the lead petitioner in the case.

In point of fact, the then electoral commission chiefs led by Wafula Chebukati, despite their apparent displeasure with the ruling, said they were open to investigations and prosecution over the mishandling of the Presidential election.

He even promised that there would be internal changes to personnel at the Commission. It is on this backdrop that Ezra Chiloba ended up being sacked from the Commission.

Just like with Constitutional reforms, there has been a great clamor for electoral sector reforms in Kenya for the longest time. There seems to be a general consensus that in the recent past, only the 2002 elections met the threshold of credibility and integrity.

The highlight of the flagrant malpractice being in 2007 when, in full glare of the public, the then Chairman of the Commission, Mr. Samuel Kivuitu, contended he did not know with certainty who won the election.

The aftermath of that election was disastrous as the country descended into post-election violence that claimed lives and caused more to be displaced. It was not the first time it happened but it was the highlight of what ethnic antagonism and divisive elections can achieve if we don’t have a handle on how we manage our elections.

Coming right after the promulgation of a progressive new Constitution just three years earlier, the 2013 General Elections were expected to be a watershed moment for democratic advancement and yet the Issack Hassan-led commission disappointed in the same vein.

It is not lost on us that the 2013 election were held on the backdrop of the 2007 post-election violence hangover and therefore it was quite imperative that the election achieved a high threshold of credibility and integrity.

This was the moment that we actually needed to get it right. This did not happen and it seemed to mirror instances of the more things change, the more they remain the same. It ended up being another greatly divisive election with little accountability.

Actors in the electoral and political sector have contended that the 2013 disputed elections did not lead to wanton violence only because there was fear of a repeat of the 2007 imbroglio.

Atsango Chesoni has posited that the country sacrificed the democratic principles of credibility and accountability in election at the altar of peace and owing to the experiences of the 2007/2008 Post Election Violence. I could not agree more. Lessons were learnt though.

It is said hindsight is 20/20 and in retrospect, it looked like there would be tangible progress after the disputed 2013 elections.

There seemed to be deliberate synergy by national, regional and even international state actors to ensure that owing to the new constitution there would be gains made in the electoral process and infrastructure.

This could be seen by the deliberate introduction of technology in the entire transmission process and overhaul of the entire commission and appointment of new personnel.

The Ezra Chiloba-led secretariat came in and rolled their sleeves and seemed intent on delivering an election that met the constitutional threshold of free and fair elections contained in Article 81.

There was the seemingly transparent tendering process, improved civic education programmes, technological mapping tools and enhanced public participation processes. There was also the pronounced approval rating from the public.

When Chris Msando, the ICT honcho at the commission, was brutally assassinated just a few days to the election, it was a clear sign that we were teetering on the edge of a precipice once again.

It is no wonder what could go wrong went wrong and the election was nullified by the highest court on the land. A second election was held without any proper reforms and the current government came into place despite an apparent boycott of the elections by the opposition.

The curtains were therefore closed on the 2017 elections by that repeat election. We had failed the credibility test once more.

When the President and Mr. Odinga came together in March 2018 under the Building Bridges Initiative umbrella, one of the major tenets was to solve the anathema of divisive elections in the country.

It was once more expected that the country would revert to an electoral infrastructure and institutional reform mode and even build more on the gains that had preceded the 2017 elections.

Actors in the sector expected we would be embarking on the reform journey. It was therefore interesting to see that when the first BBI report came out, the main focus was on decentralizing government by creating new positions at the top before discussing how capacity of the IEBC would be enhanced.

In any case, most of the propositions by the report touched on the technical aspects of appointment of commissioners and the Chairman. The other main proposal from the report was the need to give political parties a major role in the appointment of IEBC Commissioners to encourage support for the Commission by the political players.

And yet all that barely scratches the surface of the problem.

Three years after the election and two years to the next election, there seems to be no tangible and deliberate steps being made to ensure history does not repeat itself in 2022.

There has been no considered action to address the failures of the 2017 elections and yet the country is headed for another election in barely two years from now.

Several bills among them the Election Campaign Financing (Amendment) Bill, the Independent Electoral and Boundaries (Amendment) Bill and the Referendum Bill continue to drag on in the National Assembly. The entire Parliamentary system seems to have gone silent on the much-needed electoral reforms.

The IEBC is currently being run by only three commissioners and no process of recruitment has been mooted yet to fill the all so important commission slots. In fact, insiders contend that the polls body seems to be running on autopilot.

On the political front, there have been those loud roadside calls by leading political parties to have the mode of recruitment of new commissioners changed from the current mechanism where the incumbent President has great power as the only appointing authority to a more collaborative process.

It needs no gainsaying that the process of recruitment allows for gross political interference and therefore the concern by opposition parties and the need for more involvement in the process of recruitment of personnel at the Commission.

The only problem is that these calls have merely remained roadside declarations and there is little follow up on the Legislative or Executive front if any. Most observers also contend that the political players continue to wait in limbo for the final outcome of the BBI process.

The same can be said of the Commission itself and yet the reality is that the BBI process has now become a very polarizing political process that seems to be a special purpose vehicle to put a few ostensible political leaders in power come 2022.

The initiative seems to be in the service of a few people who intend to divide the top seats at the Kenyan political dinner table come the next elections.

Nandi Senator Samson Cherargey has even cautioned that Kenyans would be flogging a dead horse if they expected electoral reforms to come from our Parliamentary system or the Building Bridges Initiative.

And in a recent interview with NMG Editorial Director Mutuma Mathiu, Mr. Odinga also seemed to be only interested in the overhaul of the commissioners and other personnel at the IEBC.

He seemed to be reading from a similar script from that he was before the 2017 elections. And yet the sending home of Issack Hassan and his team did not guarantee credible elections as the next team only furthered the entrenched impunity.

As things stand, it would be untenable for Wafula Chebukati and his band of three commissioners to hold another election and yet this would not be the only reform process needed. The window for reforms seems to be fast closing in due to the residual time before the next elections and yet we seem keen to wait for last minute reforms that have failed us in the past.

It is not in doubt that the next election will be yet another hotly contested and divisive election. It is only institutional memory and capacity that would ensure it’s a level playing field for the prospective candidates in that election.

The IEBC, after an urgent overhaul, needs to earnestly begin the process of cleaning up the voter register for 2022 and to firm up the process of continuous voter registration exercise that has stalled.

The Commission also needs to begin putting together various election preparation tools and this should be done in concert with other stakeholders and the public as required by the Constitution.

Parliament needs to seriously begin the process of passing the various amendments to the electoral laws tranche to deal with issues of the IEBC Secretariat and Commission structure and duties, issues to deal with election campaign financing and the various recommendations that emanated from the Supreme Court ruling.

The other non-State players and actors need to begin setting up systems to ensure effective election monitoring and independent assessment of integrity of the up and coming election. We need to build up on the road to Damascus moment granted to us by the Supreme Court three years ago.

2022 is yonder: we need to wake up and smell the coffee.

The writer, Omondi Were, is a Nairobi-based lawyer interested in Public Governance and Youth Affairs.