Two key institutions are in a race against time to regain Kenyans’ confidence ahead of next year’s General Election.
The Judiciary and the Independent Electoral and Boundaries Commission (IEBC) are embroiled in an unprecedented crisis of confidence and experts are painting a dire need to fix the two institutions, if only to nip in the bud any possibility of widespread dissatisfaction with the poll outcome.
The IEBC is the referee in the contest, and the Judiciary — and, in particular, the Supreme Court — is the arbiter of the last resort in case of a dispute in the presidential election.
The election is expected to be more competitive than the last one in 2013 because of the high stakes for both the ruling coalition and the Opposition.
Historically, Kenya’s elections since 1992, have been more fiercely fought when the incumbent is running.
The Supreme Court is currently facing a twin crisis touching on the exit of its key members from office as well as the integrity of others.
Chief Justice Willy Mutunga will be retiring in June, while his deputy, Justice Kalpana Rawal, is hanging on a court case where she is challenging her retirement at 70, together with colleague Philip Tunoi.
Separately, Justice Tunoi is facing a tribunal on a serious corruption allegation, and regardless of the outcome, the image of the Supreme Court will remain irreparably damaged.
Analysts argue that if, indeed, Justice Tunoi took Sh200 million to deliver a favourable judgment for Nairobi Governor Evans Kidero, he could not have done it alone.
Dr Mutunga has indicated he is retiring earlier to make the process of replacing him easier, but an amendment to the law in January on the appointment of the CJ is a potential land mine.
In the old law, the Judicial Service Commission would interview and nominate one candidate, who would then be appointed by the President in his role as the Head of State.
This was a key bulwark of the 2010 Constitution, which sought to strengthen institutions and reduce the powers of the presidency.
However, the new law in which the JSC shortlists three names, gives the President more power and influence on the Judiciary.
Critics say this will not only interfere with the principle of separation of powers, but also make the President a judge in his own case should a dispute pitting him and his opponents come before the same court.
STAY A WHILE LONGER
The Law Society of Kenya is in court over the matter and how this pans out could open another battlefront.
On Friday, LSK Chairman Isaac Okero told the Saturday Nation that the society plans to meet Dr Mutunga to address the crisis facing the Judiciary.
“The crisis of confidence in the Judiciary is of great concern to the LSK and it is in our interest to do whatever we can to address this situation. We have limited time before the 2017 elections,” said Mr Okero.
In the event that the four judges leave, the JSC will have a huge task to fill the posts for what will be the most important court in the election year.
Some have called on Dr Mutunga to delay his departure.
“The situation at the Judiciary, and particularly the Supreme Court, demands that the CJ stays for a couple of more months,” said Senior Counsel Paul Muite on Friday.
He argued that if the Chief Justice were to retire now when Supreme Court Judges — Justices Tunoi, Jackton Ojwang and Smokin Wanjala (as a member of JSC) — are facing integrity questions, and the DCJ battling her retirement age, the court will be left in limbo.
On the other hand, the IEBC has come under attack over allegations of procurement malpractices even as the Opposition Cord insists it is not an honest referee.
Cord is citing grievances dating as far back as the last elections and its verdict on their abortive bid to amend the Constitution under the Okoa Kenya initiative.
On Thursday, Cord leader Raila Odinga said they would not go to the next elections under the present IEBC.
“We will not go to the General Election if there is no clear and reliable referee,” Mr Odinga said.
Already, a parliamentary watchdog has recommended reconstitution of the commission, a move that could set off a long and gruelling tussle, further poisoning the political environment.
Former chairman of the Committee of Experts Nzamba Kitonga said, although the IEBC commissioners were not legally bound by the proposal by the Parliamentary Accounts Committee to vacate office, morally, they had to consider the proposal.
“Though not legally binding, such an expression by the National Assembly says a lot and the IEBC has to take stock of such a serious matter,” said Mr Kitonga.
Mr Muite warned that to allow a commission with low public confidence to conduct the next elections would be to court trouble.
“Confidence in the electoral commission allows the losers to accept the results or at least to challenge the same in court. If it is true that IEBC commissioners and staff took bribes to award a tender for printing ballot papers, why will they not take bribes to rig an election?” asked Mr Muite, referring to the Chickengate scandal, a procurement fraud that has seen two Britons jailed and a Mauritanian government minister arrested.
‘‘All our multi-party elections with an incumbent president defending have been violent. If Uhuru Kenyatta is declared winner in another sham election, this country will burn,’’ economist David Ndii writes.
A whistle blower claims that former Interim Independent Electoral Commission staff asked for kickbacks during the procurement of ballot papers for the Shinyalu, South Mugirango and Bomachoge by-elections and the 2010 Constitutional referendum.
The crisis has also caught the attention of National Assembly Speaker Justin Muturi, who on Wednesday, asked the IEBC to hold an open and candid conversation with itself and the public to regain trust.
Speaking when he met Danish Ambassador to Kenya Mette Knudsen, Mr Muturi said the agency must try to get the trust of the majority of Kenyans.
Mandera Senator Billow Kerrow termed the discussion to disband the IEBC as “long overdue.”
“We cannot take the risk of going to the next elections with the same team of IEBC commissioners because it will be the security, unity and stability of this country that we will be putting at risk,” he said.
A Moi University-based policy analyst, Prof Nyaga Kindiki, said: “We always handle matters when they run out of hand. Now that the elections are around the corner, we create confusion by way of reactive response to problems we would have solved early enough.”
He said the apathy witnessed in the recent voter registration was testimony to the low faith Kenyans now have in elections.
In the proposal to disband the IEBC, the National Assembly’s PAC has indicted the agency’s top officials over the procurement of the 2013 election materials.
FREE AND FAIR
Any individual can petition the National Assembly, who, if satisfied with the grounds cited, will send the petition to the President, who will form a tribunal to investigate the member(s) and report within 30 days.
The Commission on Administrative of Justice had in January advised the IEBC commissioners to “voluntarily and honourably” leave office before their term ends to avoid a constitutional crisis.
“There is a prospect of the (election) process going beyond the end of the term of the IEBC commissioners, which would create a constitutional crisis,” the commission, popularly known as the Ombudsman, said in its January 6 advisory.
Both Cord and Jubilee leaders have differed on the extent of the crisis. Jubilee says the IEBC confidence debate is merely “a grudge war” between the Opposition and IEBC.
“It is clear Cord never forgave IEBC for endorsing Jubilee’s victory in 2013. They hatched a plot to ensure they are removed from office before 2017,” said Kigumo MP Jamleck Kamau.
Mr Kamau reiterated the commission had the best capacity to handle the next poll because they have first- hand experience of the challenges of modern voting.
Central Kenya Parliamentary Group chairman and Dagoretti South MP Dennis Waweru questioned why the opposition hits at IEBC only when they lose.
“When Moses Wetang’ula was handed a favourable judgment, when they won in Malindi by-election and earlier in Kajiado Central, they celebrated. It can’t be IEBC is good only when they win,” he said.
But as the Jubilee loyalists put on a brave face, their Cord counterparts argued the troubles at the IEBC and the Supreme Court gave little hope that the ground would be level next year.
Kisumu Senator Peter Anyang Nyong’o said an all-inclusive inter-parliamentary team would be the surest way to install a commission that would be free from executive manipulation.
Makueni Senator Mutula Kilonzo called on the Tunoi Tribunal to complete its work fast and for investigations of three other judges be expedited.
Senator Kerrow said: “If the JSC gets the Supreme Court succession right, and the corruption allegations are handled professionally, they are better off as we expect the changes. That way, we expect an almost completely new Bench.”