On 7th December 2016, Mr. Ezra Chiloba, the Chief Executive Officer of the Independent Electoral and Boundaries Commission (IEBC) caused a lot panic and confusion after announcing that all Political Parties and candidates for the 2017 general elections should register with the Commission the details of their Campaign Financing Committee by the deadline date of 8th December 2016 (the following day). Hundreds of Kenyans who think that they might vie for various positions in 2017 hurriedly opened bank accounts and rushed to the IEBC offices where amid great pandemonium, they submitted the required information.
There are three issues arising from this announcement that make Chiloba unfit to hold the IEBC top secretariat position. The first issue was that the announcement for candidates to comply with the December 8th 2016 deadline was procedurally illegal. This is because even though the Election Financing Act 2013 provides for this deadline date, the same Act requires that the Commission develops regulations which must be approved by the National Assembly, and gazetted before such sections of the Act can be implemented. The National Assembly is yet to approve the regulations, a fact that the CEO recognised, but still went ahead to make the announcement. That is also the reason why even though the Act commenced on 10th January 2014, no candidate in the numerous by-elections that have been conducted by the Commission since that date have ever been asked to comply with those provisions of the Act.
Furthermore, even if the deadline was in order, the fact that the CEO saw it proper to announce it only one day to the deadline either shows the Commission’s lack of preparedness for the forthcoming elections, or shows that there may be a deliberate plan to disrupt the 2017 elections by causing confusion and chaos. Some sections of the media have quoted Chiloba saying that the law has been there since 2014, and everyone ought to have been aware of the deadline since ‘ignorance of the law is no excuse’. This again confirms that Chiloba does not understand the role of the Commission, or the gravity and sensitivity of elections in Kenya, especially after what we witnessed after the 2007 general elections. The Commission has a duty to inform Political Parties and the public of any significant dates and deadlines towards the 2017 elections well in advance. A good example is in the fact that even though all Kenyans were expected to know that the next general elections would be held on the second Tuesday of August in 2017 in line with the Constitution, the Commission still went ahead to announce the date of 8th August 2017 over two years in advance. By claiming that Kenyans ought to know of all the statutory deadlines by themselves, then Chiloba is setting this country up for chaos.
Thirdly, even if the National Assembly had approved the regulations and had them gazetted a year before the deadline, the Commission still has a duty to read the Act alongside other election laws, rather than implement it mechanically and in isolation. This is because the Election Act requires Political Parties to furnish the Commission with lists of their candidates at least two months before the elections. It is only after Parties and independent individuals furnish these names to the Commission that candidates come into existence. By reinforcing the illegal deadline of 8th December, then the Commission has in essence declared that a person becomes a candidate by opening a Bank account and submitting the details to the IEBC!
When there is a clash of laws, a responsible Commission is expected to seek for interpretation and direction from the Judiciary, rather than create confusion. A responsible CEO should inspire confidence in the election process rather than breed distrust. The timing of the announcement and the arrogance after the announcement are an indicator that under Chiloba, we are headed in the wrong direction.
The next IEBC Commissioners must have the courage to make tough decisions with regards to changes in the management of the Commission. They must have the courage to implement the constitution fully by ensuring that we have credible elections on the 8th of August 2017. In order for them to do this, they must work with the National Assembly, the Judiciary, the Political Parties and Independently so as to only implement statutory laws that will enable them to fulfil these constitutional obligations.
As the Election Act stands today, any Political Party can invite the Commission to conduct and supervise their Party nominations before two months to the general elections. This will not only be impractical because of lack of time and strain on resources, but it will also set up the Commission to a perception that it would favour a Party that it has already worked with in the nomination elections and therefore interfere with its (perceived) neutrality. Assuming that the law remains as it is, will the Commission go ahead and implement it regardless of all the underlying issues?
The Act also provides that the independent candidates present ‘the names that they intend to use’ in the general election to the Commission, unlike previously where the Commission was required to print their names as they appeared on their Identity cards. What this means is that an aspirant may sponsor several independent candidates using names that are similar to his/her opponent’s and therefore confuse the voters. This is not far-fetched as it has already happened in India. Assuming that the Act remains the same, will the Commission implement such a provision as it is? Wouldn’t that be a recipe for Post-Elections Chaos in 2017?
Rather than sit back and claim to (mechanically) follow the law, the Commission should, in consultation with Political Parties Liaison Committee (which is made up of all the Political Parties, the Registrar of Political Parties and the IEBC) and other stakeholders recommend to the National Assembly practical and reasonable comprehensive amendments to all the election laws. The Commission must also have the courage to refuse to implement any statutory law that may contradict the expectations outlined in the Constitution and which may affect the integrity of the 8th August 2017 elections.
Social Democratic Party of Kenya
14th December 2016