Wednesday, December 17, 2008




By Peter Opiyo

Parliament Tuesday overwhelmingly voted to send the Electoral Commission bosses packing, ending months of nail-biting suspense over their fate.

It is now a matter of days before the President assents to the Constitution of Kenya (Amendment) Bill to effectively seal the fate ECK Chairman Samuel Kivuitu and his 21 commissioners, roundly accused of bungling last year’s General Election.

Yesterday’s Aye vote by 174 members not only put on course the dissolution of the ECK, but also the composition of a nine-member Interim Independent Electoral Commission complete with a Secretariat.

In the historic vote that heralds a new chapter in the reform process, not a single member voted against the Bill, while none abstained during the Second Reading.

The Bill required a minimum of 145 members to be in attendance, out of the 222.

Its passage came after President Kibaki and Prime Minister Raila Odinga held three informal meetings (Kamukunji) with MPs to iron out thorny issues in the Bill.

The Bill, that amends Section 41 of the Constitution, also seeks to anchor the proposed new constitution in the current one, setting the stage for the review process.

President Kibaki has already assented to the Constitution of Kenya Review Bill (now an Act) that lays out the roadmap in the search for a new supreme law.

Debating on the Bill, Justice Minister Martha Karua said: "This Bill proposes to replace ECK because there is urgent need for reforms".

The Bill is a product of the Serena Mediation team, but had to be amended several times before presentation to Parliament after ECK staff and some MPs expressed displeasure with some clauses.

In some of the amendments, ECK staffers would be redeployed to the public service after the commission is disbanded. An earlier version did not specify their fate.

But Medical Services minister Prof Anyang’ Nyong’o called for thorough vetting of the employees before they are absorbed into the service, arguing some of them had aided the commissioners in bungling the elections and should answer for their actions.

Nairobi Metropolitan minister Mutula Kilonzo said that though the Bill had a remedy for ordinary staff, it was silent on the Commissioners’, which issue could not be swept under the carpet.

The Interim Independent Electoral Commission would have nine commissioners to oversee the referendum on the new constitution and compile a new voter register.

A 27-member Parliamentary Select Committee would nominate the commissioners, to be appointed by the President in consultation with the Prime minister.

This was also part of an amendment that dislodged the Serena team from appointing the commissioners.

The Bill also introduces new sections 41B, 41C and 60A to establish the Independent Boundaries Review Commission, the Independent Dispute Resolution Court and provide for their respective membership and functions.

The Chairman of the Parliamentary Committee on the Administration of Justice and Legal Affairs, Mr Abdikadir Mohammed (Mandera Central) — recalling the Njoya case that challenged the constitutionality of a new constitution in 2005 — said the special court would guard the constitutional review against interference.

"The Bill brings a new institution given the critical role it would play in the referendum," he said.

The review of the boundaries, he noted, was long overdue given that some areas were expansive and required adequate representation.

Foreign Affairs minister Moses Wetangula warned of the possibility of vested interests interfering if the process dragged out.

He praised the creation of the special court, saying it would ease the dragging of petitions.

Other members who contributed in support of the Bill were Deputy Prime minister Musalia Mudavadi, Lands minister James Orengo and MPs Gitobu Imanyara (Central Imenti), Amos Kimunya (Kipipiri) and Millie Odhiambo (nominated).

The passage of the Bill followed the adoption of the Kriegler Report that called for an overhaul of the electoral body.

Earlier, Vice-President Kalonzo Musyoka, who is also the Leader of Government Business, fast-tracked debate on the Bill by moving two procedural Motions that sought extension of the sitting of the House and hastening debate on the Bill.

According to House rules, a Bill can only be tabled not earlier than 14 days after publication. Kalonzo sought to reduce this to five days.

He thanked President Kibaki and Prime Minister Raila for striking a consensus with the MPs at the kamukunji, held earlier yesterday, where the decision to send the Kivuitu team packing was reached.

Yesterday, it became clear that the ECK would not go without a fight.

Through its lawyer, Kibe Mungai, the ECK announced it would move to court to challenge the amendment terming it unconstitutional.

"This is an illegal legislation passed for reasons of convenience. It is an illegal decision. With that, we shall be in court to challenge it," Kibe stated.

The legislation provides for the creation of the Interim Independent Boundary Review Commission and the Interim Independent Constitutional Dispute Resolution Court with nine members each.

For the first time in Kenya’s history, constitutional office holders have been ejected from office without a tribunal.

MPs accepted the Bill without objection as read to them by Abdikadir.

Unlike in two previous meetings where MPs exchanged harsh words, yesterday’s saw only Kibaki, Abdikadir and Justice Minister Martha Karua speak.

Karua said the new law would give room to a credible electoral organisation that all Kenyans could trust.

"At the moment, if there were to be need for serious elections, the country would be in disarray. It is for that reason that we need a law like this," said Karua.

Wetangula said the reforms would usher in a new era of democracy in the country’s institutions.

"The passage of the Bill will take us to the next level and ensure that we do not go back to a situation we found ourselves in (at the beginning of the year)," he said.

And Cabinet minister Kiraitu Murungi said: "I am very happy that finally we are on course to have this Bill enacted". Impressed by the consensus achieved over the matter, an elated Kibaki thanked MPs — confessing that he had spent sleepless nights over the matter. "Finally I will have a reason to sleep. I am very happy we have finished it," a relieved Kibaki is said to have declared at the Kamukunji.

It was all smiles when the over 150 MPs walked out of the Old Parliament Chambers after the 25-minute kamukunji forum. The consensus was agreed after at least 10 amendments at a meeting comprising Karua and members of the Administration of Justice Committee chaired by Raila.

Literally, all the over 600 ECK staff together with the commissioners stand sacked the moment the new law comes into force.

Nyong’o described as a milestone the passage of the Bill, which he said signaled the beginning of institutional reforms. "ECK was a total rot. With this new development, Kenyans can now hope that there will be serenity in the electoral system," he said.

Mutula, on his part, said the Bill was silent on the commissioners’ fate.
He called for a proper plan to ensure the commissioners are duly compensated before leaving office.

Ndhiwa MP Orwa Ojode described the passage of the law as a Christmas gift to Kenyans.