On the Road to Damascus - Looking at the constitution implementation process with a focus on elections.

The Constitution Implementation Process with a Focus on Elections

BY

CONSTITUTION AND REFORM EDUCATION CONSORTIUM

Opening Shot:

“Dear Kenyans, I fear for Kenya. I doubt whether the country will have elections with integrity and credibility. Further I highly doubt there will be government with legitimacy. The integrity of ballots is in question. Since August 27, 2010 the government of Kenya knew elections will be held on August 2012. Funny and deliberate hurdles were put in place through delayed enactment of prerequisite laws and appointment of IEBC Commissioners. Arguments on election arose despite clear Constitutional stipulations. IEBC became inconsistent on the matter. Finally Courts said election date is March 4, 2013. Voter registration stalled. It is now a big fraud. Initially it was unheard figure of Kshs. 3.9 billion for the exercise. It is now costing tax payers a whopping Kshs. 9.6 billion! Some of the money being a commercial bank loan. This is massive rip off! And even with this outright theft, viability of credible, secure and democratic elections is not there yet. The country is staring at crisis of momentous proportion.”

(A Leading Civil Society Activist)

BACKGROUND

The upcoming general elections in Kenya, slated for March 04 2013, are the second-most important since the independence elections held in May 1963. While most of Kenya’s electoral processes have largely been peaceful (save for 1992, 1997 and 2007), there remains fissures that always point to a breakdown of electoral rules and general disorder in most of the elections held since resumption of multiparty politics. These include:

 a) highly controversial and often violent political party nominations, which sideline women, youth, marginalized groups and so on, due to their highly competitive nature and undemocratic rules;

 b) an electoral register that does not contain all names, especially of a burgeoning young population and often ‘ghost voters’;

c) the first-past-the-post electoral system (FPTP), which creates all manner of disparities such as anomalous results, which therefore do not lead to universality and equality of the vote;

 d) a highly insensitive electoral process to the needs of vulnerable groups such as persons living with disability;

e) an electoral system that seems largely controlled by whoever occupies State political power, who often manipulate the electoral management body; and

f) electoral areas that are a result of past and continuous gerrymandering by the political party in power, which therefore lead to discriminatory results within the FPTP system.

The above systemic and structural weaknesses led Kenyans, through constitutional review process, to seek a more credible, transparent and reliable electoral system, which could translate their vote into real choices, and meet internationally-respected standards for any electoral system. Some of the principles espoused in the Constitution of Kenya (2010), reflect the thinking of not only the framers of the Constitution (the Committee of Experts) but its makers as well (the Kenyan people). Generally, these principles aspire to create a more equal electoral system, one that is accountable and where progressive representation of previously marginalized groups can access power through elections of such groups or through any other means that Kenyans might deem fit. The principles cannot be read in isolation within the Chapter on “Representation of the People” exclusively, since other Chapters such as on Leadership and Integrity, Executive, Legislature, and Devolved Government among others, should be read together with the principles of the electoral system and structure.

The upcoming elections are unique in many ways. To summarize: first, they will be held under the radical Constitution including a new legal framework (Elections Act, 2011) derived from that Constitution and also new institutions which are perceived to be largely  independent and credible. Second and deriving from the above, the elections will have an unprecedented number of candidates; at least six. These include: the president/deputy president; the governor/deputy governor of the county; the senator; the member of the national assembly; the member of the county assembly; and finally, the ‘woman representative’ will be directly elected from the county to be a member of the national assembly. These number of candidates ‘flattens the pyramid of power’ to the extent that the most coveted seat of the presidency will still have some residual powers, but so will the seats of governors and senators. Unlike before, these powers are checked and balanced.

Third, from a regional and international perspective, the elections will be held on the same day/date unlike other countries, which have these sort of elections split in weeks such as in Uganda in 2011 or Nigeria in 2010. This could lead to a lot of confusion amongst the electorate, who usually have voted for three candidates since independence. Additionally, most voter/civic education has targeted subjects such as leadership, democracy, the importance of the vote and so on, but have hardly interrogated the voter mentality in Kenya. That is, why voters despite all past civic/voter education, have cast ballots based on factors such as ethnicity, clanism, bribes solicited, and other such factors. Perhaps this points to the urgent importance to review our voter education curriculi before these elections.

Fourth, the cost of these elections will be one of the biggest in the country and the region, yet Kenya is still to recover fully from the effects of the 2007/2008election violence. Whereas the government’s 2011 Economic Survey points towards an increased growth (currently said to be 5.3 percent), skeptics still point to the net effects of that violence that include: general socio-economic collapse; internal displacement and its attendant humanitarian crisis; economic divestment; business and capital flight; decreased agricultural production; and, deterioration of social capital among others.

Indeed, these elections will require, and have shown, a huge budgetary support from within the country and outside, and this, therefore could lead to a heavy toll on our post-elections’ national and county budgeting with perhaps huge inflation and budgetary deficits as a result. The second part to this issue is why any foreign government(s) would hugely fund the elections budget deficit in Kenya, against the stipulated standards of the UN of having elections largely funded by the sovereign State. While the political role of the diplomatic community in Kenya is largely present, it is interesting to see which foreign countries fund the election budget deficit and for what interests.

Fifth, and perhaps more importantly, the elections will be held against a backdrop of the fraudulent presidential elections of 2007, and hence if successful, will create a new sense of legitimacy for that president and government that is formed, since the current grand coalition government has no direct electoral legitimacy: it is a ‘negotiated government’ under the auspices of the Kenya National Dialogue and Reconciliation (KNDR) mediation agreements, which essentially underpin this government’s reason for existence. Thus, these elections are a serious test for electoral legitimacy among the Kenyan populace to whoever emerges as president and forms the next government.

CONSTITUTIONAL PROVISIONS

The Constitution is crystal clear on the provisions relating to the elections, especially what could be termed as ‘hardware’ issues (law, not practice). These include provisions of the Constitution in and of themselves that do not require legislation to implement; legislation that is required to be enacted to operationalize some principles; and finally, institutional that were to be established to ensure that the people’s aspirations of a new order, alluded to in the above Background, are realized.  Whereas there has been progress on some of these fronts, as shown in the next Section of this Paper, there have also been serious blunders and overlaps along the way in terms of misinterpretation of the Constitution and other laws, unconstitutional legislation, weak legislation, or simply weak institutions: especially those institutions that are critical to ensuring elections are credible and accountability is fostered.

Second, the Constitution also envisages ‘software’ issues (practice, not law) that require serious changes in Kenya’s political culture before, during, after and in-between the elections. Political culture is nurtured and relates to the attitudes, belief systems, ideological perspectives, opinions and such like concepts that are ingrained in a people towards the political system, which include political parties or State institutions and their roles in a democracy. Political culture affects the citizens’ perceptions of political legitimacy of the government.

The above ‘software’ issues are not necessarily legislated but are based on whether citizens believe in them and practice them. In other ways, there is the practice of disobeying laws without commensurate accountability (impunity). The issues include: elections that are free, fair and credible; elections not tainted by voter bribery, corruption or violence; individual and democratic freedoms that must be exercised with restraint and respect for others’ freedoms; independence of the electoral management body; and finally the extent to which voters’ attitudes influence how they exercise their choice. With regard to the latter especially, within the Kenyan context, some commentators have alluded to warped choices made by Kenyans regardless of ‘voter education’. The enforcement or implementation of these ‘software’ issues depends on the prevailing political culture among the populace; and hence, no one can legislate for instance how voters make their choices.

From the foregoing, it is therefore clear to assess Kenya’s preparedness to achieve a free, fair and credible elections, it is important to assess, or indeed compare and contrast, the ‘hardware’ and ‘software’ issues, and the extent to which there are achievements (progress) or challenges (deficits) in each of the issues. The Section below highlights some of these.

ELECTORAL PREPAREDNESS: ‘HARDWARE’, ‘SOFTWARE’, ACHIEVEMENTS AND CHALLENGES

NO.	HARDWARE	SOFTWARE	ACHIEVEMENTS	CHALLENGES
1)	Constitution of Kenya (2010)	·        Unrelenting support from civil society groups, though fractured ·        Formation of fake ‘civil society’ to rival & stall its implementation ·        Discordance among the political elite and existence of ‘water melons’ to date ·        Jurisprudence emerging from courts shows radical / activist postures courtesy of new judges ·        Spirit (constitutionalism) of the Constitution abrogated many times by executive (e.g. county commissioners) and legislature (e.g. increment of personal emoluments) ·        Most laws (courtesy of personal interests) not read with modifications necessary to reflect the Constitution as provided in Section 7 of Sixth Schedule (e.g. House Speaker decision on MPs emoluments)	·        Constitution with new proposals especially on elections ·        Clear radical proposals on representation of marginalised groups and communities ·        CIC and CIOC established, including  other institutions, playing oversight role ·        Supreme Court established including a High Court team to oversee election petitions  in addition to attempts to include magistracy ·        Clarity in most court rulings and judgements (e.g. boundaries’ delimitation) ·        Most laws/ aspects under Fifth Schedule on track	·        FPTP system still exists, and nothing can be done currently ·        The two-thirds gender rule for elective offices not dealt with to date ·        Parliamentary ‘threats’ to amend to reduce assembly seats from 290 to 210 ·        Amendment of the Constitution (145 MPs) not feasible currently ·        Court rulings and judgements sometimes not fully informed (e.g. judgement on education requirements for leaders) ·        Some laws/aspects in Fifth Schedule passed late and hurriedly without due public participation and constitutionalism ·        Legislation required on other areas not paid attention to (e.g. freedom of information)
2)	Constitutional Provisions on Elections	·        Public support for radical leadership and integrity requirements ·        Challenges of implementing leadership provisions based on ethnicity, clanism and myopia by many voters ·        Aspirants challenges to leadership requirements (e.g. ICC suspects) ·        Party nominations (during by-elections) marked by violence, voter bribery and undemocratic rules ·        Women phobia and propaganda on ‘women seats’ and affirmative action generally	·        Public debates on two-thirds gender rule ·        Enactment of various legislation on elections ·        Establishment of institutions to assure credible elections ·        Clarity in most court rulings and judgements (e.g. on election date by High and Appeal Courts ·        Representation of women and other groups clear	·        Operationalization of the constitutional provisions (seen below under electoral laws and institutions) ·        Constitutional challenges on achieving two-thirds gender rule in elective seats ·        Need for speed in drafting and enactment of legislation on marginalised groups (Art. 100) before 2013 elections since its not strait-jacketed to 5 years ·        Traditional  attitudes towards marginalised groups
3)	Electoral Laws, including Political Parties as key actors	·        Political will lacking (e.g. party hopping allowed to ‘last minute’ in Jan 2013) ·        Coalition-building based on ethnic chieftain alliances ·        Difficulty in ensuring that State Officers, such as prime minister, vice-president, and ministers do not abuse State resources for party campaigns ·        Culture of mobilizing population using ethnic sentiments, stereotypes ·        Perpetual use of hate speech / unsavoury language in campaigns ·        Prosecuting cases of hate speech tainted by “apologies” by perpetrators (impunity) ·        Political parties bankrupt in ideology and internal democratic principles (e.g. manifestoes  and recent nominations respectively)	·        Laws such as on elections & offences, political parties, and leadership and integrity enacted ·        Other laws still in operation such as Public Officer Ethics Act ·        Political parties aligned to formation rules and also to nomination procedures /rules  ·        Most political parties fully aligning to political party rules and regulations (county & national representation) ·        Nomination rules for political parties adopted and handed over to Registrar of Political Parties (RPP)	·        Campaign Financing Bill stalled ·        Freedom of Information legislation not drafted ·        Some political parties not fully aligned to political party rules and regulations ·        Need to regulate party hopping further (through legal amendments or regulations) ·        RPP office bearer (person) needs to enforce rules and regulations for political parties ·        Defections without commensurate accountability (e.g. 100 so-called ‘party-less’ MPs) ·        Leadership and Integrity Act as a waterloo ·        Judiciary needs to hasten some of the cases under review (e.g. integrity case against ICC suspects)
4)	Institutions:	·        Lack of respect for institutions by citizenry and politicians (e.g. disrespect for courts, NCIC, ) ·        Lack of public trust and confidence in institutions borne out of political manipulation of the institutions ·        Institutional (read sometimes personal) resistance to change	·        Establishment or reform of institutions to respect letter of Constitution ·        Transparent recruitment and vetting of persons appointed to these institutions	·        Vetting not full-proof process (e.g. Matemu) as political deals supersede at times ·        Financial /budgetary support to institutions weak ·        Possible duplication of mandates or bureaucratic ‘turf wars’ amongst institutions
	a)      IEBC	·        Numerous support, trust and confidence from public due to 2010 referendum and recent by-elections ·        Some of  the populace  lack faith  in electoral management still exists ·        Enforcement of laws by IEBC, police, DPP and others still lacking due to culture of impunity ·        Perception of public about elections as a period of ‘harvest’ through the voters’ card ·        Possible voter apathy due to violent outcomes of 2007 elections, or lack of interest altogether (e.g. recent sentiments by IDPs) ·        County, constituency and ward delimitation perceptions about clanism, ethnicity etc. (e.g. sentiments as “ours” not “theirs”)	·        Act enacted and operationalized ·        Staff of IIEC and some commissioners still present carrying institutional memory ·        Supported by Budget, FY 2012/13 though not enough ·        IEBC, flowing from IIEC has used ICT to enhance efficiency in transmission of results ·        Distribution of county seats through ‘elders discussions and agreements’ (possible consociational  democracy in Malaysia) ·        Voter education curriculum /materials  launched ·        Accreditation of local observers done ·        Returning officers and other staff recruited ·        Most materials including BVR kits (part of them) delivered	·        Power struggles between the Chair and CEO (e.g. Court case in Kisumu by CEO) ·        Transparent procurement needed (e.g. purchase of BVR equipments) ·        Enforcement of laws, rules and codes relating to elections (e.g. violence and bribery during by-elections in Ndhiwa, Kangema and Kajiado South) ·        Distribution of county seats through ‘elders discussions and agreements’ (challenge of representation for women, youth and marginalised) ·        County, constituency and ward delimitation as a threat to co-existence  esp. for minorities ·        Voter registration delayed and could hamper many other processes ·        Need for re-skilling public through different voter education ·        Need to hasten training of all officers of IEBC ·        Implementation of elections road-map far behind schedule
	b)      EACC	·        Culture of corruption affected its formation ·        Political and business elite (read, ‘fat-cats’) deliberately weakened the EACC ·        Aspects of transition from KACC ignored for political / personal reasons	·        Act enacted and operationalized ·        Staff of KACC still present carrying institutional memory ·        Campaign Financing bill drafted, though not enacted	·        A commission without a chair and  Secretariat staff turnover affecting its mandate (e.g. recent investigators turnover) ·        Legally and institutionally challenged to undertake vetting of those seeking elective office
	c)      KNCHR	·        Public trust in KNCHR arising from 2007 elections’ report ·        Political class and some public do not trust or support rights body ·        Public perception about rights (only from demand side, and never supply side) ·        Horrendous culture of rights’ violations without accountability (e.g. 2005 referendum report, 2007 elections’ report etc.)	·        New Act enacted ·        Staff and some commissioners of KNCHR still present carrying institutional memory ·        Supported by Budget, FY 2012/13 though not enough ·        KNCHR has a thriving history and credibility in election observation	·        Recruitment of commissioners stalled by Court (through a petition by public alleging Muslims relegated) ·        Need to re-think of functions in the Act in light of not receiving complaints that are of discriminatory nature ·        Need for Commission and public to pay attention to socio-economic rights as elections’ agenda
	d)      RPP	·        Political culture where political parties loathe regulation ·        Parties not based on any ideology (e.g. ethnicity and its attendant membership builds parties) ·        Culture of politicians treating parties as ‘elite outfits’ to wear, remove or hang as they deem fit	·        A new institution hived off from IEBC ·        Supported by Budget, FY 2012/13 though not enough ·        Possible recruitment of an independent Registrar	·        Need for current Registrar to get out of office (e.g. for lack of enforcement of rules relating to defection) ·        Political parities need to agree on formula of sharing roles in recruiting Registrar ·        Financial support to RPP
	e)      NCIC	·        Ethnicity (sometimes referred to as ‘negative ethnicity’) rife in Kenya’s political culture ·        Hate speech new to Kenya’s political culture ·        Religious and racial intolerance side-stepped mostly by Kenyans and the NCIC (e.g. MRC terrorism targeted Christians and other ‘up-country’ Kenyans) ·        Culture of stereotyping ethnic, religious and racial groups prevalent among Kenyans ·        Diversity (sometimes referred to as ‘cohesion’ or ‘tolerance’) not fully comprehended or respected by politicians and supporters	·        NCIC Commissioners term renewed for one year (ending September 2013) ·        Staff and all commissioners of NCIC (save for vacant Vice-Chair) still present carrying institutional memory ·        NCIC records in prosecuting hate speech cases acting as deterrence (e.g. during 2010 referendum campaigns)	·        Conceptualization of direct, indirect and multiple discrimination needed on the part of NCIC ·        Need for NCIC to establish synergy with KNCHR and National Commission on Gender and Equality on issues of discrimination ·        Prosecution of hate speech cases challenged by withdrawals by complainants (e.g. recent withdrawal by Muslim for Human Rights) ·        Need for NCIC to cooperate with police and DPP to eradicate impunity
	f)       Police	·        Perception about police as the most corrupt and unaccountable public institution ·        Lack of trust in any perceived reforms (read, systemic and structural bottlenecks cannot be eliminated within this generation) ·        Regime policing writ large (read, protection of State and business interests rather than public human rights and freedoms) ·        Culture of police themselves (as pacifiers and suppressors) not rending public service ·        Lack of impartiality by police with regard to political parties (either in power or the opposition)	·        Various legislation enacted: National Police Service Act, Independent Policing Oversight Authority and the National Police Service Commission ·        IPOA and NPSC started operations (albeit IPOA has not made any public pronouncement of their work) ·        Process to recruit IG and Deputy IGs by the NPSC is underway ·        Guidelines by NPSC of recruiting 7,000 police made public recently	·        Negative Culture of police still intact (e.g. recent dispersions of demonstrators exercising freedoms of assembly) ·        Suppression and ‘pacification’ of citizens  still intact (e.g. recent leadership of MRC and Tana River) ·        Need for publishing national guidelines for public order management before elections ·        Need for re-skilling and equipping police before the elections   ·        Generally, police training on election laws, political impartiality, ·        Reforms have stalled or delayed (e.g. vetting of police) ·        Comprehensive police reforms not possible before 2013 elections

CONCLUDING REMARKS

From the foregoing, it is quite evident that the journey towards the upcoming general elections in 2013 is a long and winding one.  Indeed to pessimists, where some have written and spoken on this issue, they see a long and treacherous journey. The factors they attribute to this view is based on the ‘half-glass’ depicted above especially where the challenges seem to overcome the achievements. To the optimists, especially the IEBC and part of the executive arm of government, they consider the challenges surmountable.

From our perspective as CRECO, it is evident that there is need to step up the speed and ensure that the ‘hardware’ issues are made to work either through enactment of legislation; review/amendment of that legislation; and operationalization of the institution that could bring pressure to bear to ensure that the elections are free, fair and credible. Unfortunately, a key institution necessary for the undertaking of these foregoing issues is the National Assembly, which could wind up in the second week of December 2012. If elections are held as scheduled in March 2013, it means that the current Tenth Parliament will not re-convene any time before the outcome of those elections.

From the preceeding, it is instructive that the government of Kenya holds the key to a free, fair and credible election. The executive arm of government, working with the legislative arm, should provide policy guidance, Cabinet resolutions, legislative reform and institutional budgetary support among other measures.  At the moment, the speed and sense of urgency is lacking. Pulling energy together rather than apart, the political parties represented in the House, with clear stewardship from the two principals, could salvage a process that is dithering with a lot of pessimism.

Whereas the judiciary has made headway in reforming itself, two things still stand in the way:  first, conclusion of the vetting exercise for judges and magistrates, which incidentally has been stalled by the High Court, contrary to the Constitution. The vetting exercise should be completed, at least for all High Court judicial officers, since they will to handle all disputes arising to the upcoming elections. Second, while the judiciary may be commended for consolidating all cases relating to the boundaries’ delimitation, it should proceed in the same way and consolidate all cases and deliver judgement as quickly as possible on the ‘software’ issue of leadership and integrity.

Finally, the role of the other institutions highlighted above cannot be gain said. It is evident that there is a lot of ground to cover, and this must be prioritized with the urgency it deserves. Kenyans should and must hold these institutions, through own initiative or through civil society, to account: public trust in all these institutions and respective State and public officers is needed, if Kenya has to avoid the apocalypse of the 2007 elections debacle.

Parting shot:

“An evaluation of the timelines and activities basic to delivery of an election manifests perilously close and almost back-to-back events, clearly indicating the near impossibility of keeping with March 4…A host of pre-election processes presume the completion of the registration activity and existence of a register. Nominations to run for elective office either by political parties or as independent candidates depend on the register…With our politics becoming increasingly regional, the temptation to stretch nomination wrangles is all the more attractive because in many counties and constituencies, the nomination exercise shall be as good as the General Election itself. For the areas where there will be disputes, the IEBC will not commence printing of ballot papers until determination of those disputes. With all these unresolved issues, there is need to seriously and objectively consider whether March 4 is still a realistic date for the next General Election.”

(An expert on elections)