Saturday, September 20, 2008



September 20, 2008
By Njoki Ndung’u
The Standard
Nairobi, Kenya

A fundamental deduction from the Independent Review Commission (Irec) report is that unless suitably reviewed, the current roadmap to a new constitution will herald another false start.

This has largely to do with the expected role of the Electoral Commission of Kenya (ECK).

The Grand Coalition Government is agreed in principle the new constitution or at least a part of it will be subjected to a referendum. The latter, as the November 2005 plebiscite confirmed, is a serious electoral undertaking supervised by the ECK.

Yet the team chaired by Mr Justice Johann Kriegler passed a harsh judgement on the Samuel Kivuitu-led outfit: as it is currently composed, ECK is ill-suited for its role. The report is firm that it should be abolished and a raft of radical changes introduced to make it more professional and confidence-inspiring. Thus before even proposing a roadmap on constitutional review, it is imperative the electoral body must first be disbanded. ECK shortcomings must be cured with the necessary legislation and constitutional amendments.

Few options

The Kriegler team recommends several specific options. It wishes to see the number of commissioners whittled down from the current 22 to a leaner, efficient number.

More importantly, it proposes commissioners, and especially the chair, must be chosen through a competitive, consultative and inclusive process. That would be a marked departure from the current arrangement of sharing out slots among major political parties who invariably place premium on rewarding party loyalists ahead of merit and competence.

IREC also wants ECK to punch its full weight in holding political parties to account for flouting their own regulations. For instance, those that fail to practice their own nominations rules should be barred from participating in elections. It would prefer tougher action on electoral thuggery.

Another important recommendation is the establishment of an independent electoral boundary commission. It will be its responsibility to draw new constituencies and right-size existing ones. This is borne out of an appreciation the current ones are the products of gerrymandering and are therefore unequal and unfair. Irec noted glaring disparities in constituencies population.

Registered voters

Some have as many as ten times registered voters as others. This undermines the principle of one-man, one-vote. Indeed, delays in receiving electoral results were partly attributed to disparities in constituency sizes and the sheer number of participating voters. Besides the management challenges of conducting elections in such areas, such contrasting populations also manifest a flippant attitude to the tenets of ideal democracy.

How can one represent more than half a million Kenyans on the same footing as one who represents 20,000? Disproportionately large numbers of constituents invariably compromise the quality of representation.

An MP with more residents to tend to can only afford them so much time and attention. More importantly, as the hullabaloo of CDF allocations points out, inequities in constituency populations has a direct link to skewed allotment of national resources.

Many districts are currently a single-constituency affair. The district remains an important unit of sharing and distributing national resources, especially development kitties and public-funded services and amenities. Thus under the current scenario, constituencies’ population matters significantly. Representation has direct linkage to taxes and their translation into services, which are consumed by people. As it is currently, representation in Parliament and in local authorities is a farce.

Alongside the desired changes to ECK, another urgent electoral reform should target the presidential poll. We must never forget that the mayhem and the pillage that followed last year elections was provoked by disputes over this particular contest. It is therefore necessary to introduce the 50 per cent + 1 per cent rule. The winning candidate must garner more than half of cast votes. Failure to, the two top contenders would have to go for a run-off. The Parliamentary Committee on Justice and Legal Affairs under Paul Muite specifically made this recommendation in the Ninth Parliament. Had it been bought, the country would have avoided the post-election bloodshed.

Priority list

The problems encountered after the last election must form the priority list for the Grand Coaltion Government. These reforms are a critical to redressing some of the problems identified under Agenda 4. The acid test for the Grand Coalition will be in how fast the recommendations of the Kreigler and Waki Commissions are implemented.

The next logical step should be instituting relevant constitutional amendments through a minimum reform package and a consolidated national Elections Bill in Parliament.

The Truth, Justice and Reconciliation Bill currently pending in the House should be also be concluded urgently.

If these steps are not taken, the raison detre for the Grand Coalition will be called into question.

The consequences of this political union falling apart are too grave to contemplate. Going back to elections under the current ECK is unthinkable. In the meantime, Can Kivuitu and his team do the honourable thing and resign?