Election Laws: Will Senate Decision Lead to A Better Electoral System in Kenya?

The citizens of Kenya by a popular Referendum in 2010 enacted a new Constitution that embodies their hopes, promises and their vision of the future.  A departure from the first forty-seven years of independence that had failed to deliver the Promises and dreams of independence to the majority of its citizens.

Subsequently, the principle of free and fair elections is legally enshrined in the constitution and provided for in the Elections Act and the Political Parties Act. This is besides being a treaty to many international and regional treaties that contain standards on the conduct of democratic elections.

Elections are the core of how we govern ourselves.

However, the Independent Review Commission (IREC) – the Kriegler Commission findings on the 2007 general elections pointed out that the electoral system was not founded on the principle of equal votes.

According to the commission, elections were won or lost by a simple majority regardless of the number of registered voters in a constituency that cast their ballots. The system reinforced ethnicity by privileging the mobilisation of communities with an emphasis on the need to access and control state power for the benefit of those elites that win presidency. This is according to Ka review by AfriMAP, Open Society Initiative for Eastern Africa and the Institute for Development Studies of University of Nairobi on Kenya Democracy and Political Participation.

Since the 2013 General Elections, Kenya is yet to learn that elections is a process.

“Kenya approaches elections like an event, not a process. Polling is an event. Elections is a process,” according Willis Otieno, a Kenyan Lawyer.

The forthcoming August, 8 General Elections will mark the its 12th cycle of elections in Kenya since independence.

Most citizens are unable to understand and own the purpose of elections.

Several things have taken place.

One, Kenya has a new Chief Justice of the Supreme Court.

CJ David Maraga has already focused his attention to the elections.

“Elections and Election Dispute resolution is a key priority for me,” he said during his swearing in speech.

However, he urged other players to play their part in ensuring that the elections are undertaken in accordance with the set constitutional standards.

Two, President Uhuru Kenyatta’s nominees for the Independent, Electoral and Boundaries Commission (IEBC) chair and commissioners names have been forwarded to the National Assembly for approval.

Ms. Wafula Chebukati, Chair and Ms. Consolata Nkatha bucha, Mr. Boya Molu, Dr. Roselyn Akombe, Amb. Dr. Paul Kurgat, Ms. Margaret Wanjala and Prof. Abdi Guliye as commissioners.

The Senate is engaging the public and other stakeholders on the Elections Law after the National Assembly passed amendments to it. Key among those passed include: Clause 4A of sections 39 and 44 of the Elections Law (Amendment) Bill, 2016 that empowers the IEBC to revert to manual system in the event of technical failure during the elections.

Others are requirements for those contesting for member of Parliament or Member of the County Assembly to have a university degrees to apply in 2022 elections. The Elections Campaign Financing Act, 2013 was amended to provide for the reduction period by which persons need to have opened mandatory campaign financing bank accounts.

The Senate will on Thursday make its conclusion from its Justice Legal and Human Rights Committee of the Senate headed by Former Attorney General, current senator for Busia County Amos Wako on the contentious issue of the best alternative if the electronic voter registration fails, manual or electronic.

It is not a surprise that this discourse is taking place, but too late.

Mr. George Kegoro, Executive Director Kenya Human Rights Commission, then at the Kenyan Section of International Commission of Jurists during a stakeholder’s forum, he posed the question:

“What is the place of technology in the next elections? Is it an IEBC decision or a political decision?

“How do we rescue registration as an important accountability instrument in the conduct of credible elections? He added.

Nevertheless, these conversations promote participatory democracy making it an important principle in the governance of public affairs on governance in Kenya.

Giving people freedom to make political choices especially in elections, plays an important role in consolidating democracy.

It is hoped that the outcome from the Senate will leverage the ongoing electoral system reforms for it to sufficiently contribute to democratic governance which will have a trickle-down effect to the political Parties Act, 2013, the Registrar of Political Parties and the IEBC.

Thus, the Political Parties Act and the Registrar will be in a position to effectively enforce laws governing the operations of the political parties, and the IEBC will be able to manage the elections.

Prof. Dr. Makau Mutua, in the Political Parties in Transitions: The Kenyan Experience says, “… political parties, as the sole organs that rule the State, must understand, advance, and defend the country’s national interests. Although political parties will differ in ideology and philosophy, they nevertheless must espouse and abide by core national interests. It is important to note that the national interests of many States are permanent. As a result, political parties in many States have a certain non-negotiable minimum core of values to which they adhere.”

Once the impasse has been resolved, it will create room for the creation of a verifiable principle register which need to be published and gazetted six months before the date of the general elections to reduce the window for tampering. This will also mean that, there will be no new entries to the register after the publication of the gazette.

Further, it will provide an avenue for monitoring the whole electoral process.

Subsequently, an informed Electorate will be able to understand that election is a means of ensuring accountability where they have a clear choice and the tools to elect transformational leadership.

That those elected to an office for a fixed period will at the end of that period be audited, vetted, interrogated on whether they performed or not and if they did not perform then they be ejected from office and replaced with a new set of leaders who will serve the voters.

Related: As 2017 Comes, Will it Be the Bullet of the Ballot?