Failure to come up with a formula to settle the never-ending contentious matter of constituting the electoral commission during the ‘Handshake’ has come back to haunt Azimio la Umoja One Kenya Coalition Party boss Raila Odinga.
With the Independent Electoral and Boundaries Commission (IEBC) not legally constituted after the tenure of Mr Wafula Chebukati, Prof Abdi Guliye and Mr Boya Molu came to an end on January 17, and Ms Juliana Cherera, Mr Francis Wanderi and Mr Justus Nyang’aya having resigned while Ms Irene Masit facing the Justice Aggrey Muchelule-led tribunal, the opposition leader is crying foul that President William Ruto is out to hand-pick commissioners who will favour him in the 2027 General Election.
During a meeting in Kibra, Nairobi, on Sunday, Mr Odinga repeated calls to decentralise the IEBC and for joint selection of commissioners.
Scored own goal
“We will not allow Ruto and his sycophants to single-handedly appoint IEBC commissioners,” he said. However, the former Prime Minister appears to have scored an own goal when he rallied his allies during the second term of President Uhuru Kenyatta to support the IEBC (Amendment) Bill, 2019 which gave the Parliamentary Service Commission (PSC) many slots, with politicians who were coalescing around Dr Ruto when he served as Deputy President opposed, saying it was giving both Mr Kenyatta’s Jubilee party and Mr Odinga’s Orange Democratic Movement (ODM) sweeping powers on the recruitment of the commissioners. The law at the time said the selection panel was to have two men and two women nominated by PSC, one person nominated by the Law Society of Kenya (LSK) and two nominated by the Inter-Religious Council of Kenya.
The move by Jubilee and ODM has been used by allies of Dr Ruto to claim that Ms Cherera, Mr Wanderi, Mr Nyang’aya and Ms Masit were ‘Handshake’ commissioners.
Mr Odinga and his allies are reading malice in the IEBC (Amendment) Bill 2022 sponsored by National Assembly Majority Leader Kimani Ichung’wah, which has been assented into law by President Ruto, arguing that it gives the ruling coalition an upper hand in recruiting new IEBC commissioners.
It alters the first schedule of the parent Act to change the composition of the selection panel that oversees the filling of vacant positions at the commission.
The new-look selection panel shall include two nominees — one man and one woman — from PSC, down from four in the repealed law.
The panel will also have one person nominated each by PSC the Political Parties Liaison Committee (PPLC), the LSK and two people, a man and a woman, representing the Inter-Religious Council of Kenya (IRCK).
ODM chairperson John Mbadi yesterday said the PSC having a slot is like having the executive influencing the recruitment of the commissioners, arguing that the current Act is a bit skewed compared to the one Mr Kenyatta assented into law in 2020.
“It is time we have political parties constituting the electoral body because in this country a person can never be independent or neutral. The former formula whereby PSC had four slots was better because it had a reflection of political parties.”
“The previous law didn’t really look objective but it was better … this is worse because PSC is the recruiting agency of the executive. The two slots of PSC will be influenced by Kenya Kwanza the way the Tanga Tanga complained then that Jubilee and ODM influenced the selection panel but let us not go that direction, let us do the right thing,” Mr Mbadi explained. President Ruto’s allies are now arguing that they have corrected the mistake that was the “Handshake Bill” of 2019, which they opposed.
Mr Ichung’wah yesterday maintained that the changes at the PSC will help cure the mess created by Mr Odinga and the former President.
“The provision that Uhuru created of having the PSC nominate four members to the panel is what we have corrected. George Murugara and I we are on record having vehemently opposed the Handshake Bill because it was unconstitutional,” he said.
He added: “We have seen the folly of having biased commissioners. They can burn a country. We want to tell Azimio that we are not interested in having stooges in the commission. The fact that we are in government should tell them that you don’t need your people at the commission to win an election. All you need is to sell your agenda to the voters.”
Tharaka MP Murugara, who is also the chairperson of the Justice and Legal Affairs Committee denied accusations by Azimio politicians that the current law gives the Head of State sweeping powers on the recruitment of IEBC commissioners.
“IEBC commissioners will not be hand-picked. In fact, the selection panel will have an Azimio person because, of the two PSC slots, one will go to Kenya Kwanza while the other one will go to Azimio. There is also the Political Parties Caucus, which is not influenced by anyone. They will bring their nominee. Azimio is now realising the mistake they made by the previous law, which is back to haunt them,” said Mr Murugara.
Kibwezi West MP Mwengi Mutuse, who is also the vice chairperson of JLAC, said it was hypocritical for Azimio to claim that one slot going to PSC would give the President an upper hand in the recruitment of IEBC commissioners.
“The PSC is established under Article 233 of the Constitution as an independent body and is not a department of the executive. The current PSC commissioners were recruited under President Uhuru Kenyatta’s government and not under Ruto. The selection panel has seven members, to say that one member from PSC will skew the recruitment is a joke,” he said.
Mr Mutuse added: “They are expressing ignorance or knowingly misleading the public. Recruitment of IEBC commissioners is a competitive process done by a multi-sectoral selection panel. The recent amendment to the IEBC Act brought on board two representatives of political parties in the selection panel. It’s therefore misleading to say the President is hand-picking commissioners.”
Vihiga Senator Godfrey Osotsi and his Kitui counterpart Enoch Wambua said the recruitment of the IEBC commissioners needs consensus and Kenya Kwanza should not use their numerical strength to unilaterally put their choices in office.
“The PSC did not belong to ODM and Jubilee. At some point in this country we must learn to constitute public interest organisations along the lines of fairness, equity and the rule of law. The fact that a political side with the support of more than half of the population of Kenya is raising the red flag on the route taken in constituting the panel to steer the process of recruiting the electoral body commissioners must be a good reason to build consensus on that front.”
Also read: Inside Kenya Kwanza plan on IEBC changes
“There is a growing misconception that Kenya Kwanza owns Kenya; they don’t. This country belongs to all of us and all shades of opinion must be on the table in relation to governance issues,” said Mr Wambua. Mr Osotsi said the law needs an overhaul so that the country embraces the Inter-Parties Parliamentary Group (IPPG) model.
“We need an IEBC that will act and be seen to be impartial, fair and independent. We had good elections in 2007 due to the IPPG. Bipartisanship involving all players in electoral reforms is the way to go,” said the Vihiga senator.
Alego Usonga MP Samuel Atandi said: “We need to change the whole principle behind naming commissioners to IEBC. The current law gives the governing party sweeping powers to appoint commissioners. We are asking for a consultative and consensus approach between parties and coalitions.”
In 1997, Kenya adopted the IPPG model that allowed parties to name individuals to the electoral commission. International Centre for Policy and Conflict Director Ndung’u Wainaina told Nation that the perennial problem facing IEBC will always be there until the recruitment of the commissioners is made transparent.
“IEBC is constitutionally and legally independent, but it is not structurally independent because the mode of recruiting the commissioners is compromised.
IEBC does not enjoy financial independence. Let IEBC prepare its own budget with funds sourced directly from Parliament rather than through a ministry. We need to establish a National Electoral Commission Fund to give it financial autonomy,” he said.