Why parties should pick electoral agency bosses

At the special sitting of the Senate on January 19, the chairman of the Senate’s Justice, Legal Affairs and Human Rights Committee (JLAHRC) was, at the last minute, forced by an invisible but very powerful hand, to withdraw and abandon the Committee’s proposed amendments to the Independent Electoral and Boundaries Commission (Amendment) Bill, 2022, which he had already tabled in the House.

It was a mind-boggling experience for me to witness such a boldfaced last minute intervention by deeply vested partisan interests which ensured that the Senate, like the National Assembly had done earlier, also passed the Bill without any amendments.

In the clearly choreographed process, the National Assembly published the Bill to purportedly comply with the decision of the High Court in the case of Okiya Omtatah Okoiti v Attorney General & 5 others (Constitutional Petition E364 of 2020)1, which quashed the law on the composition of the ad hoc Selection Panel for recruiting persons to be appointed as IEBC commissioners.

The Court declared the panel’s composition to be unconstitutional mainly because the Parliamentary Service Commission (PSC) dominated the process by appointing four out of the seven panelists, with two chosen by the Inter-religious Council of Kenya, and one by Law Society of Kenya.

Though the Bill reduced the number of panelists appointed by PSC to two, it maintained dominance by the State by giving one nominee each to the Political Parties Liaison Committee (PPLC) and the Public Service Commission.

Fearlessly independent

Clearly, those who steamrollered the Bill through Parliament have either ignored or failed to recognise that election management in Kenya, just like elsewhere in the world, is a highly toxic political affair, which requires to be managed by a fearlessly independent electoral body, especially this time when the new commissioners will not only be responsible for holding elections and referenda; they will also be responsible for reviewing the names and boundaries of Kenya’s 290 constituencies.

 The IEBC has “structural” independence, in which it is formally separated from the Executive branch of government through constitutional and legislative mechanisms. But that does not provide any assurance that the electoral management body will be fearlessly independent when conducting elections. Only “mutual constraint” through partisan balance can achieve such independence.

In countries with an independent public service, responsibility for electoral management is delegated to a non-partisan body. In other countries, partisan balance is sought by allowing political parties to make appointments to electoral bodies. Both of these strategies are used by governing and opposition parties as “structures of mutual constraint” to achieve a neutral bureaucracy.

 In Brazil, which has one of the most successful electoral systems in the global south, the Judiciary, through an Electoral Court, organises, supervises, and conducts elections.

 In South Africa, Section 6 of the Electoral Commission Act 51 of 1996 provides for a standing selection panel (not an ad hoc one) for appointing the six commissioners of their electoral body.

Direct interest

The panel consist of the President of the Constitutional Court, as chairperson, a representative of the Human Rights Commission, a representative of the Commission on Gender Equality and the Public Protector.

Since the members of the panel stay on in the public service, they can be held accountable for actions of persons they nominate and recommend to the President for appointment, with the approval of Parliament, as commissioners.

In Western democracies, the trend is to level and stabilise the playing field by having political parties, the direct contestants at elections, nominate officials who preside over elections. Examples include the Federal Election Commission of the USA and the Electoral Commission in the United Kingdom.

 In the US and UK, the use of political parties, which have a direct interest in the outcome of elections, to nominate electoral officials eliminates favouritism because political parties are direct stakeholders who check each other to ensure a level playing field. The shared rivalry and suspicion among political actors ensures fair play. This would be ideal for Kenya given our history of State capture by the Executive.

For example, in Kenya, the 2002 presidential election and the 2005 referendum were free and fair, whose outcomes were universally acceptable to all, because political parties (Kanu, DP, Ford Kenya, Ford Asili and Safina) appointed electoral officials under the Inter-Parties Parliamentary Group (IPPG) reforms.

Under the IPPG, the number of commissioners were increased to 22 to give political parties a chance to nominate their representatives.

Though the IPPG commissioners did not have a major impact in 1997 because they came late, just two months to the general elections, they proved their worth by giving Kenyans the only credible elections so far since independence, at the presidential elections in 2002 and at the referendum in 2005.

But the clamour for a new constitutional order came with the search for an independent body to conduct elections, in a system that is wholly shielded from politicos from both the opposition and the government.

 But when the country moved away from the IPPG model to appoint commissioners of the IEBC through an ad hoc selection panel, and not through a standing committee like in South Africa, it allowed entities that were not independent organs anchored in the Constitution, who also were not “direct” stakeholders in the outcome of elections, and who were not accountable to anybody, to play centre stage with disastrous results.

The main problem is that the ad hoc panels, which are formed to recruit candidates for appointment as commissioners, expire as soon as the President appoints the nominees Parliament approves. They never stay to take blame or credit for what their chosen officials do while in office.

An ad hoc selection panel, which cannot be held accountable for its work, undermines the independence of the IEBC. If Kenyans don’t want political parties to appoint election officials, the solution lies in having a constant standing selection panel that is drawn from heads of independent State organs, as is the case in South Africa, whose constitution is similar to ours.

The other problem is allowing entities which are neither independent nor contestants at elections to appoint members of the Selection Panel. These nebulous bodies cannot secure the independence of a constitutional organ like the IEBC.

Hence, the Bill recently approved by Parliament, which simply seeks to tweak the composition of an ad hoc selection panel, will not solve the foundational problem of our failure to get an honest and acceptable umpire for our elections.

We must make a bold decision to go either with the American and British systems, where political parties directly appoint the commissioners of the IEBC.

— By Okiya Omtatah Okoiti, Busia Senator.