By: Prof. Dr. Halimu Shauri
I have been listening and watching keenly events as they unfold from a small city of Freising in Munich, Germany with high hopes that all will be well in my motherland. From the electoral events of 2007 through 2013, I must congratulate fellow Kenyans for exercising maturity and resilience in the concluded presidential electoral hocus-pocus. However, the repeat presidential elections are over but Kenya is still not out of the red yet. Indeed, IEBC has seemingly already done its work of declaring a president elect, but the legal and political heat is still snowballing. Why you may be asking? This is because of the numerous events and dissenting voices reverberating in all corners of the republic. Note that it is only when water reaches boiling point that it boils. Has Kenya reached a boiling point?
The answer to this question is obviously a yes given the cycle of presidential elections that have been conducted in the country. You may be wondering whether the repeat presidential election would be the last! Alas! From my earlier article in this newspaper, I said this cycle is far from over regardless of who wins the repeat polls. What did I mean? I simply meant that the rerun was not a panacea to the electoral enigma in Kenya. In any case, I reiterated that it may trigger a vicious cycle of presidential elections. How you may be asking yourself? I did say that a win to Uhuru Kenyatta will again be contested by NASA and a win to Raila Odinga will be contested by Jubilee in that vicious cycle. Though it did not happen that way because Raila withdrew from the race citing that the illegalities and irregularities as cited by the Supreme Court had not been fixed by IEBC. Nevertheless, it is still happening in another way in that NASA is contesting the announcement of Uhuru Presidency terming the rerun elections a sham. Where is the problem then, you may be asking?
Many legal minds and politicians alike are focusing on the wrong reasons. On one hand, our legal minds are fuzzy and intellectually tamper-proof by what the law says and hence cannot exercise human judgement outside the legal gridlock. They have blurred intelligence that sees and speaks according to the law despite the fact that this has now become a social problem in need of solutions beyond the law. In fact, whether the law is bad or polarizing the country, they insist that solutions only be found in law. They have forgotten that the law was made by us and to help us solve our problems. What happens if a guide or law does not work? Your guess is not better than mine; it must be reformed in line with the current mode of thinking and action. In any case, the law is just a guide to our collective thinking and action and if it does not work for us we must change it.
On the other hand, the politicians are possessed, as stipulated in my earlier article on Democracy or Demon-crazy! , published by this paper earlier in the year, by the demon of wealth and power. They only dream that the problem in Kenya is because of exclusion and non-sharing of power-as reflected in the famous half loaf slogan. This position has found new support from the clergy who are asking for a government of national unity with a Prime Minister and his deputy and a leader and deputy of opposition in parliament. While this may be noble, as it emanates from the men and women of the book, I strongly feel that this is losing us a country. In fact, the legal minds and clergy, whom I respect for their opinion, are befuddling us from the truth. Why do I think so, you may be wondering? To me the problem facing us as a country is systemic dysfunction, especially of our independent institutions and not legal or political. Which therefore would be my way to get Kenya out of this conundrum?
I have a few propositions that are critical to save the country that I personally love so much. The proposals I think focus on the real problem that affects the country’s electoral process. However, the principle of science holds that if you want to solve a problem or cure a disease, you focus on the cause and not the symptoms. If you suffer from Malaria you deal with plasmodium load in the blood stream and not the symptoms. The symptoms are supposed to be a guide to a system malfunction. What then is the prognosis of the Kenya’s electoral woes you may be asking? First, we have all to be alive to the fact that elections are conducted by an electoral body, in our case IEBC. The body is the referee to officiate the match without lining to any side, government or opposition. Like in any competition, the referee must be as objective and independent as possible. This is the reason why Kenya after many attempts to reform the electoral body we arrived at the Independent Electoral and Boundaries Commission (IEBC). The concept independent is not by chance or beauty of the name, but is supposed to reflect non-interference from any quarters in the conduct of an election. However, there are two questions to contend with here.
On one hand, is the question of how did we arrive at the current IEBC? You will agree with me that here is one place we messed up. Look at the legal instruments that generated IEBC! You will realise that the instruments that created IEBC were defective. In fact, the politicization of IEBC opened flood gates that have come to interfere with its independence. The moment we allowed competing parties to have their interests represented in the refereeing agency, we missed the point for fair judgement. We in fact introduced political competition and lack of confidentiality in the operations of the commission. Though this looked, then, to be the brightest idea and worked albeit well that time, situations are dynamic. It is critical therefore for IEBC to be reconstituted with men and women of integrity and independent mind but minus partisan representation in the commission. In the words of Frederic Bastiat "When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it."-
On the other hand, is the question of independence of our institutions, including the Supreme Court and IEBC among others. The questions to contend with here are how independent are our independent institutions? And what is the threshold above which their independence ceases? In my thinking there must be a threshold upon which their independence must cease. The fact that the leadership of our independent institutions is appointed by the executive, there is room, however, minute for subjective considerations. In fact, this should not be clouded by parliamentary vetting which in most cases has been a compliance exercise. We must take cognisance of the fact that these institutions are also dependent on treasury for funding, which again is controlled by the executive. What makes these institutions independent then become a subject open to contestation on the lenses of objectivity and intellectual and operational independency.
Another consideration for the embattled IEBC is that it operates outside the framework of good corporate governance. You may be wondering how? Yes, the IEBC has a Chairman and a Chief Executive Officer, both with executive functions and powers. This is akin to having two bulls in the same cow pen. The fighting will be obvious as has happened during the whole electioneering period in IEBC. Which way for IEBC, you may be asking? In my considered opinion, we need to separate the roles and responsibilities of the two offices. The chairman should be left to perform the role of deploying resources and the Chief Executive Officer to employ the resources. There should be a clear line between management and the board, which is composed of the commissioners.
The solution to the Kenyan impasse therefore is not in the politico-legal conundrum but in a weak electoral framework. The solution lies is streamlining our electoral institution and making it function in a professional, independent and objective manner. How then do we rebuild confidence in our institutions, especially IEBC? This is the question that the country should discuss in a national dialogue and not sharing power or inclusion. For inclusion and power sharing are short term solutions, sweet on face value, but have potential of returning us to the same cycle of electoral challenges and hence violence. The Supreme Court had the opportunity to save the country in fixing this weak electoral system but they missed the chance believing that all will be well. How could they have done it you may ask? Yes, they could have set up a Monitoring and Evaluation mechanism, probably headed by the registrar of the Supreme Court, to oversee IEBC complying with the fixing of the irregularities and illegalities as outlined in its historic ruling, probably Kenya would not have been in this state today. However, this has now been surpassed by time, and the question becomes which way for Kenya?
My unsolicited proposal, as a Kenyan and patriotic for that matter, is for the country to hold a national dialogue organized not by Jubilee or NASA but a neutral party. This party must command respect and integrity in the eyes of Kenyans. The agenda of the national dialogue should only be on how to fix our sick electoral system? The dialogue must ensure that independency of the institution real means independency and should come up with resolutions that will restore trusted in the electoral process by all, contenders and citizens alike. My considered professional opinion is that if we are able to fix what ails the electoral system, Kenya will be up and running again. Violence will not help us neither will arrogance. Let our leaders cease the opportunity and demonstrate leadership. This is the time for the age long protagonists to define their legacy in the Kenyan political space. I employ Uhuru and Raila to choose legacy over wealth and power for a win-win situation for all. Kenya is crying and I cry with it.