Kenya achieved independence from the British in 1963. Before leaving, the British, with the ethnic diversity on the ground in mind set up a federal structure similar to those they had successfully set up in many parts of their former colonies. There was a bicameral legislature of a lower house and upper house at the National level and effective legislatures at the provincial or regional levels.

Upon taking over power, the incoming government quickly proceeded to dismantle the federal setup and moved away from the multiparty democracy setup and established a powerful Presidency and a one party rule.

The British left behind an Electoral Commission whose powers were taken away by the incoming government, and with this followed many undemocratic elections which culminated in the 1988 General Election.

The worldwide democratization process during the later part of the 20th century brought down the dictatorships and the old systems had to go.

After agitation and threats of violence in Kenya, multipartism was restored in 1991. The ruling party dominated the political scene and won the 1992 and 1997 General Elections. An increase in the number of Commissioners, most of them representing the opposition, and introduction of new rules (for example moving the counting of ballots to the polling stations) changed the organization of the elections and the incumbent government (KANU) lost the 2002 General Elections as well as the referendum in 2005. Kenya was hailed around the world as one example of the best nascent democracies in Africa.

The bombshell came with the 2007 General Election results that resulted in more than 1,000 people dead and 350,000 displaced according to government sources.  Kenya, a refugee destination for people from many countries had its own people crossing the borders to neighboring countries as refugees!

As we approach the end of 2008, inquiries regarding what went wrong are still on-going.

INSTITUTIONAL STRUCTURE

The Electoral Commission of Kenya is set up under Section 41(1) of the Constitution which states “there shall be an Electoral Commission which shall consist of a Chairman and not less than 4 and not more than 21 members appointed by the President.” Kenya currently has one of the largest commissions in the world, with 22 members including the chairman. In 1997, it had 12 commissioners, all directly appointed by the president, a fact that was criticized by the opposition parties. Negotiations were carried out and the number was increased to have 10 more commissioners brought in by the opposition. Although the increase in numbers (12 to 22) was written into the law, the fact that they were brought in by the opposition was not. The then opposition (NARC) took power in 2002 but never honored the 1997 gentleman’s agreement of giving the opposition a chance to forward members to the Commission. The commissioners are appointed to serve for a period of 5 years renewable for indefinite periods. Their period of office is secured with the same provisions as those of the judges of the High Court, as they can only be removed through special procedures of setting up a tribunal to investigate their conduct and recommend action by the President.

Section 41(9) of the constitution states “in the exercise of its functions under this Constitution the Commission shall not be subject to the direction of any other person or authority”. Commissioners hold plenary meetings in which minutes are taken.

The Commission have a Secretariat headed by the Commission Secretary, who is also the Accountant Officer. There are several departments that include Human Resources, Legal and Electoral Law Reform, Information Technology and Voter Registration among others. The heads of these departments report directly to the Commission Secretary.

At the ground level, the District Coordinators co-ordinate ground work and act as procurement officers. During elections, they work with Returning Officers and other election officials.

The Secretariat staff, heads of departments, district coordinators and all election officials are appointed by the Electoral Commission who in consultation with the Treasury determines their remuneration.

This institutional structure takes care of the population of nearly thirty three million, nearly twelve million registered voters, about 23,000 polling stations and during election time about 130,000 temporary workers that include Returning Officers, Presiding Officers, Polling Clerks and transporters.

THE LEGISLATIVE FRAMEWORK

1.The Constitution

Section 42 and 42A outlines the function of the Commission. They include deciding the number of (within that approved by Parliament), boundaries and names of constituencies, registration of voters, directing and supervising Presidential, National Assembly and Local Government elections, promoting free and fair elections and promoting voter education.

2. The National Assembly and Presidential Election Act

This with schedules thereto and regulations made thereunder give detailed procedures for registration of voters, elections and election petitions. Section 17A of the Act states “The Electoral Commission shall have the overall conduct of elections under this Act and shall give general directions and exercise supervision and control thereof and take the necessary measures to ensure that the elections are transparent, free and fair”. The Electoral Commission is empowered to make regulations. The schedules have the codes of conduct for the staff and members of the Commission and an elaborate Electoral Code of Conduct with the objective “to promote conditions conducive to the conduct of free and fair elections and a climate of tolerance, in which political activity may take place without fear of coercion, intimidation or reprisals”. The Electoral Commission is empowered to enforce the code and impose sanctions.

Other relevant legislation includes the Election Officers Act, the Public Order Act governing public meetings, the Kenya Broadcasting Corporation Act allowing free access for political parties to the public media and the Penal code that goes along with the Public Officers Act.

FUNDING

The commissioners like judges of the High Court draw their salaries and allowances from the consolidated Fund but staff and election expenses have to be budgeted for and get approval from the Treasury and Parliament. The Electoral Commission cannot employ and approve salaries and expenses without approval of the Treasury.

RELATIONSHIP WITH STAKEHOLDERS

The Electoral Commission has a department handling public relations. Stakeholders do meet the Commission at the plenary or committee levels. The frequency of the meetings depends on the current activities concerning elections. The stakeholders include political parties, media, Non Governmental Organizations, Civil Society groups, religious bodies and foreign and domestic groups interested in elections and observation thereof.

During elections, a media centre is set up. Political parties are asked to send their agents for training and meetings are held with Government security officials.

ACCOUNTABILITY

The Commission has its independence as per section 41(9) of the constitution but its expenditure has to be budgeted for, approved by parliament and audited by the Auditor General.

PROFESSIONALISM

At the restoration of the Commission in 1991, its employees were seconded to it by various Government Ministries. As it got established, it employed its own staff who are trained in its activities.

There are no specific qualifications for commissioners appointed but the chairman who is appointed by the President and the Vice chairman who is elected by the commissioners must be a person who have held or are qualified to hold the office of the Judge of the High Court.

ELECTORAL REFORMS

Counting of the votes at the polling station was introduced on the eve of the 2002 general election and removed a lot of electoral malpractices including tampering with ballot boxes and ballot papers. The Electoral Code of Conduct was introduced in 1998 and applied for the first time in 2002 with positive results. Political parties and candidates were fined for the breach thereof. Computerized voter registers were produced, which helped a lot in the production of genuine registers as opposed to manual registers that were difficult to secure and handle. Media centres was set up which enhanced transparency of the electoral process. All these reforms were in place for the 2005 referendum.

With all the above in place, what went wrong with the December 2007 General Election? Have Kenyan politicians sufficiently developed democratic culture to withstand loss of power? Has the Kenyan political elite been educated enough in democratic practices to avoid the temptation of stealing the vote? These are some of the questions currently under investigation by commissions and the answers are not yet provided.

Assuming that the Electoral Commissioners and staff are honest people with integrity and professionalism that will withstand the politicians’ fraudulent or criminal designs, the reforms that need consideration in Kenya include:

1. The appointment of commissioners be taken away from the unchecked responsibility of the President, who naturally is an interested contestant in the political process. A committee of parliament be set up to receive and vet applications which are shortlisted to the required number to be subjected to approval by parliamentary resolution. The numbers approved by parliament be slightly higher than the number required and the same be given to the President for appointment, taking into account the diversity of the Kenyan nation.
2. The Commission’s financial independence be enhanced. All its expenses be drawn from the Consolidated Fund but be subjected to audit by the Auditor General and presented to parliament for scrutiny.
3. Electronic voting machines be introduced to facilitate an accurate and secure tallying of votes. These could be based on the Indian models that are fairly cheap.
4. Commission staff training be strengthened and deployment of both lower cadre permanent staff and temporary staff at the Returning Officers level be reviewed, the coordinators be stationed outside their districts and Returning Officers outside their provinces. The Commission should employ monitors to be deployed in sensitive areas to avoid conspiracies that have announced results being altered.
5. There be an Electoral Court at the Electoral Commission’s office to deal with dispute resolution during elections and if need be after elections. The lack of confidence in the ordinary courts after the 2007 election was a lesson that should be learned.
6. The provisions of the Political Parties Act scheduled to become operational from July 2008 be strictly enforced. This Act will bring sanity in the political party organization and reduce parties from the current two hundred or so to a more manageable number. According to the Act, the Registrar under the Commission will register parties and control campaign financing and the Political Parties Fund, which shall be administered by the Registrar. Further, donations from individuals worth above 5 million shilling (about 60 000 USD) with in a year must be disclosed (the sum was originally set to 1 million but was later increased by the parliament).
7. The Electoral Commission be properly financed to carry out its constitutional obligation of voter education. It must be understood that the political elite are voters and they too need voter education. The security of the vote and the voting materials must be ensured. During the 2007 tallying of votes, unauthorized people interfered with tallying and some results were snatched from Returning Officers.
8. The 2007 Draft Election Bill be presented before Parliament. Apart from consolidating the electoral law, the bill will cure a lot of election ills by introducing international best practices and customized solutions for Kenya. 
9. Kenya lags behind in women and minority representation since we are using the First Past the Post Electoral System and there are no provisions for women and minority representation. The Mixed Member Proportional Representation should be introduced to take care of this.
10. Section 42(2) of the constitution that gives Parliament power to decide on the number of constituencies be removed and the powers be vested in a Boundary and Delimitation Commission. Constituency review has been delayed because of this, yet the constitution requires constituency review every 10 years.
    

WAY FORWARD

Democratic states and international organizations should keep helping African countries to develop democratic culture through the political parties governance support, Electoral and Democratic reform and strengthening and support in civic and voter education programmes. The April 2007 Nigerian election, the December 2007 Kenyan election and the 2008 Zimbabwe election have taken Africa backwards in advancing democratic elections. However, there are positive signs. Seventy percent of Kenya’s members of parliament are young and well educated. They know what democracy means and are unlikely to maintain the status quo.