Wednesday, December 10, 2008



December 11, 2008
By Kipngeno Cheruiyot

MEMBERS of Parliament yesterday ignored persuasion and pressure from President Mwai Kibaki and Prime Minister Raila Odinga to pass a bill that would have seen the disbandment of the Electoral Commission of Kenya (ECK). Instead, a meeting convened by the two principal leaders in a bid to rally MPs behind the bill ended with the emergence of two factions; one supporting the bill and the other opposing it.

The opposing camp was led by Vice President Kalonzo Musyoka, Deputy Prime Minister Uhuru Kenyatta and Internal Security Minister George Saitoti. And in a new twist in the unfolding ECK saga, a court has summoned commissioners of the electoral body to appear before it to answer to charges of abuse of office.

Chief Magistrate Gilbert Mutembei ordered the 22 ECK commissioners to appear before him to answer to charges of electoral misconduct in last year’s bungled general election. The order was issued after a successful application by a voter, a Mr. Julius Melli who was also an observer in last year’s general election. Mr Melli, through Human Rights lawyer Harun Ndubi, will now undertake private prosecution of the commissioners.

And in Parliament, the Government was forced to withdraw the bill for the second time after it had been lined up on the Order Paper for first reading in the afternoon and subsequent approval by the Committee of the whole House. The Bill seeks to disband the Electoral Commission of Kenya (ECK) and replace it with the Interim Independent Electoral Commission of Kenya (IIEC).

Despite pleas from the two principal leaders to support the bill, MPs instead issued fresh threats to shoot down the entire Constitutional Amendment Bill (N0.2) of 2008. Sources within the meeting said the environment was so tense and emotional with MPs openly telling off President Kibaki and Raila over the issue.

And as the meeting continued to degenerate into an exchange before the two principals, it saw the emergence of two clear camps, one allied to Justice and Constitutional Affairs Minister Martha Karua and Raila, and which showed support for the disbandment of the entire ECK while the other appeared to lean towards Vice President Kalonzo Musyoka and Deputy Prime Minister and Trade Minister Uhuru Kenyatta. The latter group wants junior staff of ECK spared the sack and the formation of a permanent electoral commission instead of the proposed interim one. Numerous pleas and interventions by the President and Prime Minister fell on deaf ears as the anti-Karua MPs put a spirited fight to push their case.

Sources say Karua was booed and heckled as she tried to convince the MPs on why the entire ECK should be disbanded, with a section of the legislators accusing her of using her office to "push for her presidential ambitions." The MPs also turned the heat on Karua and her colleagues in the Serena negotiating team, accusing them of turning the otherwise ad hoc body into a "constitutional committee."

"The Serena team has no mandate to formulate any Bill or motion on behalf of the government. This was a message clearly made to them," an MP who attended the meeting intimated to Kenya Times. Karua is reported to have been furious with the outcome of the meeting, such that she bolted out of the precincts of Parliament soon after the meeting ended at 2.30 pm.

Before the meeting, sources told Kenya Times that the Serena negotiators held a separate meeting at an undisclosed office in town where they vowed to push for the Bill as a team. And another source told Kenya Times that the opposition to the bill is nothing but an escalation of the Kibaki succession battles currently raging in the Party of National Unity (PNU). It is said that Saitoti has teamed up Uhuru and Kalonzo to stall the Bill because they believe that if it succeeds, it would give Karua a lot clout.

In this regard, money is said to have changed hands among MPs to frustrate the Bill by seeking amendments to it, with Uhuru allegedly operating through Juja MP George Thuo while Saitoti’s interests are fronted by Energy minister Kiraitu Murungi. Apart from fighting Karua, the Saitoti-Uhuru axis is said to be opposed to the proposal in the Bill that the Serena team be the one to nominate the new members who would constitute the proposed Independent Interim Electoral Commission. They instead want the President to have a free hand in picking members of the new electoral body.

But Karua has rebuffed this suggestion, arguing that the single-handed appointment of Commissioners by the President is what caused the problem in ECK in the first place. She noted that letting the President be the one to pick the new team is like asking the embattled ECK chairman Samuel Kivuitu to name a new ECK team for Kenyans. The Saitoti-Uhuru team also wants ethnic representation in the new electoral body, but Karua says that can’t work.

Besides, the Saitoti-Uhuru axis wants ECK junior staff spared the sack, but Karua insists the junior staff must be axed alongside the commissioners, arguing that there are instances where the junior staff was part of electoral fraud. She cited examples where junior staff announced losers as winners of certain seats like that of Ngata Kariuki.

And the cat-fight between the two groups goes further with the Saitoti-Uhuru axis seeking to have the Chief Justice appoint the independent tribunal to hear constitutional disputes which part of he Bill. But Karua rebuffs this suggestion, saying that despite herself being Justice minister, she knows for a fact that Kenyans have lost confidence in the Judiciary to undertake such appointments.

In this regard, MPs have sought deletion of a clause that could have seen ECK secretariat staff lose their jobs saying the offending sub-section was punitive. However, it said that there was a general consensus among the legislators that the staff be redeployed to serve in other civil service jobs.

The planned removal of the ECK staff was set to pave way for a new independent electoral body to oversee referendum on new electoral and constitutional laws. Karua has reiterated that when the Bill she published on Friday comes into force Kivuitu and his fellow commissioners and staff will have to go to allow for electoral reforms.

The MPs further questioned the legality of the Independent Interim Electoral Commission (IEC), the number and manner of appointment of its commissioners. The proposed interim Independent Constitutional Dispute Resolution Court was also subject of contention with MPs saying it had enormous powers. The tribunal, set to be manned by foreigners shall have exclusive original jurisdiction to hear and determine all matters arising from the constitutional review process, a feat MPs said was impossible. The decision to effect amendments to the bill was reached after a rare caucus attended by the two principals in Old Parliament Chambers.

President Kibaki in his address to MPs in the morning was passionate. He is said to have impressed upon them to pass the bill to ensure radical reforms in the electoral body. The PM is also said to have pleaded with MPs to look at the future conduct of elections, saying the precedence set by not immediately overhauling the electoral body would deal a devastating blow to intended reforms.

However, stiff opposition met their calls with President Kibaki telling the legislators to soberly address the contentious issues and pass the bill into law. Being a Constitutional Bill, the Government fears the Bill may be defeated if no extensive lobbying is done. A Constitutional Bill requires 145 members to pass.

Also, a Bill cannot be re-introduced in Parliament after its defeat before the lapse of six months. The bill was set to be passed yesterday after the Government successfully moved a motion that would have seen the process concluded in a single sitting. Earlier in the morning, Parliament passed a procedural motion previously differed to reduce the publication of the Constitutional Amendment Bill (N0.2) of 2008 from 14 days to six.

The procedural motion was meant to exempt Constitution of Kenya Amendment Bill from rigorous processes that other Bills are subjected to. Another Kamukunji could be convened today after the MPs threw the ball into the court of the Serena mediation team and the Committee on Administration of Justice and Legal Affairs to hammer out proposed changes.

Speaking to reporters after the caucus, Wajir West MP Adan Keynan said there were several hitches in the bill that could have adverse ramifications on the country if not addressed. But he expressed optimism that the bill will be passed before MPs go on recess. They unanimously agreed to also extend the sitting period by a week to finalise debate of reform agenda.