Wednesday, December 17, 2008



December 17, 2008
By Kipngeno Cheruiyot and Philip Mulee

THE curtains have finally fallen on the Samuel Kivuitu-led Electoral Commission of Kenya (ECK) after Parliament yesterday passed the bill that sets in motion its disbandment.But as the MPs prepared to break for a three-month long recess, the fate of the controversial Waki Report has been left hanging in the balance as the deadline for President Kibaki and Prime Minister Raila Odinga to sign a pact for the formation of a special tribunal to try suspects of post-election violence lapsed.

According to the timetable drafted by members of the National Negotiating team, President Kibaki and Raila should have signed the pact by today. After that MPs would have until January 30, 2009 to amend the constitution to entrench the pact in the supreme law in order to give the tribunal the legal mandate to operate outside the jurisdiction of local courts.

Vice-President and leader of government business Kalonzo Musyoka was last night scheduled to move the procedural adjournment motion. It is not clear whether the President would be forced to summon Parliament early January to legislate the law or would have to wait until March to get the process rolling. The local tribunal should be in operation by March, failure to which the International Criminal Court is expected to take over the trial of prime suspects of the post-election violence.

Kivuitu and his team of 22 commissioners were effectively sacked after all the 169 Members of Parliament present in the House unanimously voted to disband ECK and replace it with Interim Independent Electoral Commission (IIEC). The vote for a constitutional amendment requires 65 per cent (145) of the 222 Members of Parliament.

The bill will now await President Kibaki’s assent to it into law. It went through the three stages: first and second reading; and the committee stage without much technicalities. This was possible after Parliament amended Standing Orders to extend time to debate the crucial bill. Its passage was also bolstered by a procedural motion passed last week by Parliament that reduces the publication of the Constitutional Amendment Bill (N0.2) of 2008 from 14 days to six.

The procedural motion moved by the Vice President and leader of Government Business Kalonzo Musyoka was meant to exempt Constitution of Kenya Amendment Bill from rigorous processes that other Bills are subjected to. Moving the Bill Justice, National Cohesion and Constitutional Affairs Minister Martha Karua said a consensus had been reached after a consultative process by all Members of Parliament.

She said the Bill was meant to achieve major issues; entrench the constitution review process in the constitution, introduce an interim independent electoral body, establish Interim Constituency Boundary Commission and a tribunal court to deal with electoral cases. Seconding the motion, Lands Minister James Orengo termed the move as historic and commented the MPs for agreeing to amend the constitution to facilitate the review of the country’s constitution.

Those who contributed during the debate welcomed their unanimity to legalise the constitutional review process and expressed hope that a new constitution would be achieved in one year. Chairman of the parliamentary committee on the administration of Justice and Legal Affairs Abdikadir Hussein said the Bill was not only going to disband the Electoral Commission of Kenya (ECK), but also ensure that the country gets a new constitution.

Gitobu Imanyara (Imenti Central, CCU) said "This is an historic day for Kenya where Parliament starts the true process of the review of the constitution". Others who contributed in support of the Bill included Ministers Mutula Kilonzo (Nairobi Metropolitan Development), Moses Wetangula (Foreign Affairs), Prof Anyang’ Nyong’o (Medical Services), Assistant Minister Danson Mungatana, and MPs Amos Kimunya (Kipipiri, PNU), Isaac Ruto (Chepalungu, ODM), Prof Margaret Kamar (Eldoret East, ODM), Eugene Wamalwa (Sabaot, PNU) and Millicent Odhiambo (Nominated, ODM).

Some points of divergence between the Government and MPs were the future of ECK staff and the enormous powers vested in the Serena Team setting up the interim electoral body and hiring new commissioners. The bill now empowers the Legislature to play a lead role in electoral reforms a feat that saw MPs introduce amendments to the Constitution of Kenya (Amendment) Bill 2008 after two informal meetings last week failed to yield the much needed support to pass it.

The previous Bill had mandated the former United Nations Secretary-General Kofi Annan-led National Accord and Mediation Team to appoint the chairman and other members of the interim body. "The chairman and other members of the Commission shall be nominated through a competitive process by the Parliamentary Select Committee and upon approval by the National Assembly be appointed by the President in consultation with the Prime Minister," reads the Bill in part.

President Kibaki and Prime Minister Raila Odinga attended the meeting that lasted for only 20 minutes before trooping out in preparation for its passage yesterday afternoon. ECK junior staff will not be sent home but the modalities of absorbing them into the civil service are yet to be finalised. However, it said that MPs are in agreement that the staffers reapply for their previous positions in ECK once the new outfit is in place.

The Parliamentary committee will come up with names of individuals to be appointed as Commissioners for onward submission to Parliament then the two principals for approval. Similarly, nine commissioners will serve in the IIEC down from five proposed in the bill. They will be selected through a competitive process by the PSC comprising 27 members before approval by Parliament and the two principals.

"There shall be an Interim Independent Electoral Commission which shall consist of a chairman and not more than eight other members," says the Bill. On the life-span of IIEC, the new Bill gives it 24 months after the enactment of the new constitution unlike the rejected one which had put it at 15 months.

"The Commission shall stand dissolved 24 months after the commencement of this section or three months after the promulgation of a new constitution, whichever comes earlier," says the Bill.