Author: Shumbana Karume
Background
The post-election violence in Kenya in 2007–08 triggered action by the regional and international community that resulted in successful mediation efforts led by former Secretary General Kofi Annan. An agreement that became known as the Kenyan National Accord and Reconciliation Act was brokered between various factions and political parties and signed on 28 February 2008. The accord, which aimed to address the post-election crisis, committed all parties to immediately stop the violence, restore fundamental human rights and liberties, and address long-term issues including constitutional and institutional reforms. By way of spearheading the assumed constitutional and electoral reforms, the accord provided for the formation of an Independent Review Committee (IREC). In conformity with its terms of reference, the IREC presented its findings and recommendations in January 2009 in the Kriegler Report.
The report’s findings were based on its analysis of the Kenyan elections legal framework; the structure, composition and management system of the Electoral Commission of Kenya (ECK); and its organization and conduct of the 2007 electoral operations. The report concluded that ‘the voter register which has been updated from time to time since 1997, is materially defective in various respects that in themselves already impair the integrity of elections results’ and that ‘numerous implausibly high turnout figures reported in the strongholds of both main political parties evidence extensive perversion of polling, probably ballot stuffing, organized impersonation of absent voters, vote buying and/or bribery’. [1] It also made extensive and detailed recommendations on correcting practices that were inconsistent with good practices in election organization. The report highlighted a number of measures to address some of these shortcomings, and the ECK was advised to implement these measures to improve future elections.
Following the IREC report, and consistent with the public’s sentiments, the Kenyan parliament voted in 2008 to replace the ECK with a new electoral management structure. The Interim Independent Electoral Commission (IIEC) was thus established in May 2009 by amending sections 41 and 41A of the former constitution. The IIEC consisted of a chairperson and eight commissioners who were nominated through a competitive process by a parliamentary select committee, approved by the National Assembly and appointed by the president in consultation with the prime minister. As per the constitutional amendment, the IIEC’s tenure was to come to an end three months after the promulgation of the new constitution, which would provide for a permanent electoral body to succeed the IIEC and take on its role of reforms. The IIEC in effect had a total of 12 months to discharge its mandate.
The functions of the IIEC were the following; however, its function of delimiting boundaries was transferred to the Interim Independent Boundaries Review Commission. [2]
- reform of the electoral process and the management of elections in order to institutionalize free and fair elections;
- the establishment of an efficient and effective secretariat;
- the promotion of free and fair elections;
- the re-registration of voters and the creation of a new voter register;
- the efficient conduct and supervision of elections and referenda;
- the development of a modern system of collection, collation, transmission and tallying of electoral data;
- the facilitation of the observation, monitoring and evaluation of elections and referenda;
- the promotion of voter education and the culture of democracy;
- the settlement of minor electoral disputes during an election, as may be provided by law; and
- the performance of other functions prescribed by law.
The IIEC’s mandate was explicitly formed to carry out specific electoral reforms recommended by the IREC report, such as creating a new voter register due to serious anomalies in the existing register. The IIEC was generally able to undertake several electoral reforms; its most notable success was the management and organization of the constitutional referendum of 4 August 2010, which was commended and found to be transparent by all stakeholders.
The referendum ushered in a new constitution in 2010 that had an approval rating of 68 per cent of the votes. Article 88 of the new constitution called for the establishment of the Independent Electoral Boundaries Commission (IEBC). The IEBC is also recognized by and subject to the constitutional provisions that apply to constitutional commissions and independent offices. [3]
Like any other constitutional commission, the IEBC is expected to be subject only to the constitution and to be independent—and hence not subject to the direction or control of any person or authority. [4] This institutional independence is also enforced by article 25(2) of the Independent Electoral and Boundaries Commission Act, which stipulates that every individual member and employee of the commission shall perform the functions and exercise the powers provided for in this act independently, and without direction or interference from any state officer, public officer, government organ, political party or candidate, or any other person or organization.
Legislative Framework Governing the Kenyan Electoral Commission
The passage of the new constitution in August 2010 was a resounding landmark for Kenya’s political development. It provided a framework for implementing a number of important institutional and legal reforms, many of which were non-existent and therefore were required under the new constitution, or were simply needed to ensure that other laws and acts in the relevant sectors were compliant with the new constitution.
The electoral sector was the most affected by the promulgation of the country’s new constitution. The constitutional provisions relating to elections — chapter 7, articles 81-92 — are considered progressive, and draw on best practices from the organization of democratic elections in other countries. Article 88 of the constitution defines the IEBC’s functions and sets out the criteria for membership and the formula for appointing members. The constitution also stipulates the rights of all Kenyans to participate in elections and referenda (article 83) and includes provisions to promote the participation of traditionally excluded groups (e.g. women and people with disabilities) in the electoral process (article 81).
The constitution also includes provisions on election legislation. It stipulates that Parliament shall enact legislation to provide for the delimitation by the IEBC of electoral units for the election of members of the National Assembly and county assemblies, the nomination of candidates, registration of voters, the conduct of elections and referenda, and the progressive registration of citizens residing outside Kenya.
The new constitution also defines several guiding principles for introducing regulations and administrative decisions on the electoral system. Article 81 sets out the guiding principles for the electoral system, stipulating that citizens should have the freedom to exercise their political rights; not more than two-thirds of the members of elective bodies can be of the same gender; there should be fair representation and equality of vote; and free and fair elections should be held that are by secret ballot, free from violence and intimidation, and conducted and administered by an independent body in an impartial and neutral manner. These principles paved the way for replacing the FPTP system with a PR system.
In addition to the constitution, a number of laws have also been enacted to govern elections in Kenya. These acts directly govern different aspects of elections and the electoral process. Stakeholders emphasize that conflicting requirements among the new legislative acts must be reconciled before election day. Prior to the new constitution coming into force, many laws governing elections in Kenya were scattered among various acts, which presented a huge challenge to those tasked with implementing these laws. Several laws were revised and consolidated in 2011, including three key pieces of legislation: the IEBC Act, the Political Parties Act and the Elections Act.
The IEBC Act provides a comprehensive mechanism and framework for the appointment, effective operation and management of the commission. Part II of the act contains provisions on the administration of the commission, including its internal structures, functions, and the appointment and terms of service of its members and staff. Part III provides for the establishment and administration of the IEBC Fund and other financial procedures of the commission, and Part V comprises miscellaneous provisions on the principles that govern the commission in the fulfillment of its mandate, its independence and its management of information. The IEBC Act also contains a series of schedules: the First Schedule defines the procedure for appointing a commissioner; the Second Schedule provides for the conduct of the business and affairs of the commission; the Third Schedule prescribes the oath or affirmation of office for the members and the secretary, while the Fourth Schedule contains the code of conduct for members and staff of the commission. [5]
The code of conduct, which applies to elections and referenda, is a new development in the Kenyan electoral environment. It is a fairly comprehensive code that serves to strengthen the professionalism of IEBC employees, as well as create obligations for political parties and referendum committee officials and candidates to adhere to the values and principles of the constitution. It requires all members and employees to conduct themselves professionally, efficiently, impartially and independently, and prohibits employees from holding another public office. All members are expected to perform their duties in a manner that maintains public confidence and to respect the rights and freedoms of all persons.
Powers and Functions
The IEBC’s functions were set out in article 88(4) of the constitution and the Electoral Act of 2011:
- conducting or supervising referenda;
- conducting and supervising elections to any elective body established by the constitution;
- conducting and supervising any other elections as may be prescribed by an act of Parliament;
- continuous registration of citizens as voters;
- regular revision of the voter register;
- delimitation of constituencies and wards;
- regulation of the process by which parties nominate candidates for elections;
- settlement of electoral disputes, including those relating to or arising from nominations, excluding election petitions and disputes arising after the declaration of elections results;
- registration of candidates for elections;
- voter education;
- facilitation of observation, monitoring and evaluation of elections;
- regulation of the amount that may be spent by or on behalf of a candidate or party in any election;
- development of a code of conduct for candidates and parties contesting elections;
- monitoring compliance with legislation related to parties’ nomination of candidates; and
- investigation and prosecution of electoral offences by candidates, political parties or their agents.
The IEBC also has the residual power to perform such other functions as provided for by the constitution or any other written law. This has given the commission the occasion to conduct work that is outside its formal legal mandate, including advising or administering elections for institutions such as the Law Society of Kenya. The commission’s broad mandate also gives it the reputation of being the primary institution with adequate authority to advise on issues relating to elections.
Composition and Appointment of Commission Members
Section 5(1) of the IEBC Act provides that the commission shall consist of a chairperson and eight other members. It has a chairperson and eight commissioners, which is much smaller than the 22 members of the former ECK. The formula for appointing the chairperson and members of the commission is set out in the First Schedule of the IEBC Act. The president is required within 14 days of a vacancy arising in the commission to appoint a selection panel comprising a chairperson and eight members drawn from distinguished professionals in the private sector or public service with relevant expertise. [6] The selection panel is required within seven days of its convening to invite applications and publish the names of all applicants. The panel is then required to consider the shortlist of applicants and conduct interviews. After the interviews, the panel is required to select three persons qualified to be appointed as chairperson and 13 persons qualified to be appointed as members of the commission and forward these names to the president, who must have his or her selections approved by the National Assembly. For the purposes of appointment, the president is required to consult with the prime minister in accordance with the constitution.
Upon consideration and approval, the National Assembly forwards the names to the president for appointment. If the National Assembly rejects any nomination, the speaker is required to notify the president as soon as possible. Within 14 days of the rejection, the president shall submit to the National Assembly new nominations from the list of nominees received from the selection panel. If the National Assembly rejects all or any subsequent nominee submitted by the parliamentary committee for approval, the selection panel shall forward to the president fresh names from the persons shortlisted and interviewed, and the procedures outlined above would be repeated.
The IEBC Act provisions on the appointment and effective operation of the IEBC also stipulate the qualifications of the chairperson and members of the commission. The chairperson must be qualified to hold the office of a Superior Court judge under the constitution, while commissioners must be citizens; hold a degree from a recognized university; have proven relevant experience in electoral matters, management finance, governance, public administration or law; and meet the requirements of leadership and integrity as set out in chapter 6 of the constitution. Anyone who has held office within the preceding five years or stood for election as a Member of Parliament and/or governing body of a political party, or who holds any state office, is ineligible for IEBC membership.
The chairperson, vice chairperson and members of the commission can serve for six years and cannot be reappointed; they must retire at the age of 70. As stipulated in section 7 of the IEBC Act, the chairperson and vice chairperson are required to serve on a full-time basis, while the seven other members serve part time. The commissioners enjoy security of tenure as governed by chapter 15 of constitution articles 248(1) and 251, and can be removed from office only for serious violation of the constitution or any other law; gross misconduct; physical or mental incapacity to perform the functions of office; incompetence and bankruptcy. Should the question of removal arise, the president is authorized to appoint a tribunal to investigate the petition for removal after consideration by the National Assembly. The tribunal is required to make a binding recommendation to the president, who shall act in accordance with the recommendation within 30 days.
The secretary to the commission and commission’s secretariat — which comprises professional, technical, administrative officers and support staff — are appointed by the commission through an open, transparent and competitive process. Public officers may also be seconded to the commission upon its request. A public officer who is seconded to the commission is deemed to be an employee of the commission, and shall enjoy the same benefits and is required to comply with the constitution, the act and any other written law relating to elections. As with the chairperson and members of the commission, the secretary of the commission has a six-year term of office, but is eligible for reappointment.
Institutional Structure of the IEBC
The IEBC is structured in accordance with the provisions set out in the IEBC Act, which requires the chairperson and members to respect the delimitation of duties between the commission as the policy-making organ and its secretariat as the policy implementation and administrative organ. Commission policymaking is implemented by one of several committees.
The secretariat is headed by a chief executive officer who is responsible for executing the commission’s decisions; he or she assigns duties and supervises all employees of the commission, and is responsible for facilitating, coordinating and ensuring the execution of the commission’s mandate. The secretary heads a secretariat that manages the day- to-day running of the commission. The secretariat is composed of a deputy CEO, nine directors and 17 managers. The current directorates are Voter Registration and Electoral Operations, ICT, Human Resources and Administration, Voter Education and Partnerships, Finance and Procurement, Legal and Public Affairs, Research and Development, Risk and Compliance, and Registrar of Political Parties. Each directorate is supported by a team of managers, officers and junior staff. The commission also has 17 regional offices administered by regional election coordinators and 210 constituency officers administered by constituency election coordinators, who are responsible for coordinating the commission’s work in the regions.
Financing of the Commission
The IEBC is funded by the government through Parliament under an independent budget that is no longer tied to the Ministry of Finance. Parliament has the duty to allocate adequate funds to enable the commission to perform its functions. The funds of the commission, however, consist of other monies such as grants, gifts, donations or other endowments given to the commission and funds that may vest in or accrue to the commission in the performance of its functions.
The process of funds acquisition begins with the IEBC preparing budget proposals for each financial year and submitting them to the treasury. The agreed budget is then presented to Parliament for consideration and approval. Once approved, the money is paid into a specialized fund in which all commission funds are held. This consolidated fund is managed by the secretary of the commission in accordance with all the laws and regulations relating to public financial management. From this fund, all operational and other expenses incurred by the commission in the performance of its functions shall be paid. Previously, salaries and allowances were the expenses of the consolidated fund; since the reforms, all IEBC expenses including recurrent expenditure and expenditure for reform and electoral exercises are now charged on the consolidated fund.
While charging the IEBC’s entire election expenses to the consolidated fund has improved the commission’s financial independence, the IEBC continues to experience difficulties in securing adequate funding in a timely manner from the appropriate authorities to undertake its elections processes. This has prolonged the commission’s reliance on donor funding and assistance, which is generally provided through the UNDP-run Kenya Elections Assistance Programme. There are also specialized donors that give the IEBC technical assistance in various areas. Early in its term, donors pledged financial support to the IEBC to be disbursed under the Elections Sub-Group of the Democratic Governance Donor Group (DGDG). This support will need to be revisited and disbursements released, since the IEBC was unable to obtain government funding for its entire budgetary outlay.
Accountability of the Commission
The IEBC is required to observe all reporting procedures on its operations as well as financial regulations and accounting procedures in the management of its funds, as stipulated in sections 20 and 23 of the IEBC Act. The commission is required to present its annual report to the president and submit it to Parliament within three months after the end of each year. The annual report shall contain the financial statements of the commission, the activities it has undertaken and any other information the commission considers relevant. The commission is required to publish the annual report in the Gazette and in at least one national newspaper.
IEBC Act sections 20 to 22 include further provisions on the financial reporting regulations to be followed by the commission. It is required to keep proper books and records of accounts of its income, expenditures and assets. These records are to be submitted to the auditor general within three months after the end of each fiscal year, accompanied by statements of its income/expenditure and assets/liabilities.
Professionalism of Electoral Officers
The IEBC code of conduct places enormous emphasis on professionalism. It has several provisions relating to integrity, honesty, transparency and professionalism to which members and employees of the commission are required to subscribe. Every member and employee is expected to perform their duties with integrity, to treat their colleagues with respect, to respect the rights of all persons they interact with, and to discharge their duties in a professional, efficient, transparent and effective manner and in line with the rule of law.
For example, the act stipulates that a member or employee of the commission shall not make private use of or profit from any confidential information gained as a result of being a member of the commission while in office. A member or employee shall conduct their private affairs in a manner that maintains public confidence in the integrity of their office and the commission as a whole. The code of conduct therefore serves to strengthen professionalism in the performance of employees’ duties and prescribes several provisions to improve professional integrity.
The IEBC Act also addresses the proper functioning of the commission’s internal democracy, with rules and procedures that, if adhered to, will lead to better governance, professionalism and credibility. The Second Schedule to the act seeks to regulate the business affairs of the commission by ensuring that regular meetings are held, that proper minutes of each meeting are recorded, and that members follow clear rules and procedures if there is a conflict of interest. These provisions will ensure that the commission conducts its affairs in a democratic and transparent manner.
In practice, the IEBC has been building its staff capacity and professionalism through the provision of various internal self-improvement training programmes on different aspects of elections and devolution.
Electoral Justice Responsibility
The constitution requires Parliament to enact legislation establishing mechanisms for the timely settlement of electoral disputes. Article 88(4)(e) gives the IEBC responsibility for settling electoral disputes, including those related to or arising from nominations, but excluding election petitions and disputes subsequent to the declaration of election results. In response to the constitution’s provision, the Elections Act of 2011 contains various provisions (particularly section VI) that deal with election disputes resolution; section VI also specifies the timeframe within which an election petition filed through the commission should be settled.
In accordance with the Elections Act, disputes shall be determined within seven days of their lodging with the commission; where a dispute relates to a prospective nomination or election, it shall be determined before the date of the nomination or election. The Elections Act sets a timeframe of 28 days after the declaration of results by the IEBC within which an election petition may be filed. [7] The Elections Act also empowers the IEBC to make regulations to provide complaints resolution mechanisms and settle electoral disputes — however, it has not yet issued such guidelines.
Empowered with the legal mandate to investigate and prosecute cases of electoral malpractice, the IEBC has begun recruiting investigation and prosecution staff to improve its capacity. Despite the law, to date the IEBC has not dealt with any electoral malpractices, although some (such as vote buying and voter bribery) were witnessed during the recent by-elections.
Stakeholder and Media Relations
During the disputed 2007 election, the media came under intense criticism. The IREC report in particular faulted the media for its skewed coverage and for the role it played in making inflammatory and partisan broadcasts. The government was faulted for having a weak legal and institutional framework for media regulation. New legislation and amendments to old legislation have been enacted to strengthen these frameworks. For example, article 34 of the constitution guarantees the independence of the media and provides that all state-owned media shall be free to operate impartially and independently determine the editorial content of their broadcasts and other communication. All state media should also be afforded a fair opportunity to present divergent views and dissenting opinions. The constitution also empowers Parliament to enact legislation that provides for the establishment of an independent body responsible for setting media standards, and regulating and monitoring compliance with the set standards.
Parliament also enacted the Kenya Communications Amendment Act (2009) to address some of the challenges of media regulation. The act provided for the formation of a Broadcasting Content Advisory Council, which was inaugurated in June 2010. Other relevant legal measures include the Media Act of 2010, which provided for the establishment of the Media Council of Kenya and gave it the responsibility to regulate the conduct of the media. Parliament, however, has yet to pass a number of bills to help improve the professional conduct of the media. These include the Media Bill of 2012 and the Freedom and Information Bill of 2012.
The Media Council published guidelines to help ensure professional conduct and reporting ahead of the 2013 elections. The IEBC also established guidelines on media elections monitoring and set up a media centre to provide a central location for the official release of all information concerning the elections. These accomplishments notwithstanding, there are to date no laws guaranteeing equitable access to the media during elections. The Elections Act of 2011 does empower the IEBC to establish necessary regulations for media access, however these have yet to be created.
In addition to the Political Parties Liaison Committee (PPLC), which was established by the legal framework as a statutory body to enable structured dialogue and consultations between political parties and the IEBC at the national and county levels, the commission has undertaken other efforts to help streamline consultations with stakeholders — particularly political parties. The IEBC recently issued guidelines to help guide political party practices, and has regularly provided information to all stakeholders through structured consultations such as the IEBC’s Civil Society Forum and public outreach initiatives such as the Partners’ Dialogue Forum, which facilitates the participation of observers in the IEBC’s work and gives donors an opportunity to interact more closely with the IEBC. Despite these efforts, there are ongoing concerns that IEBC consultations with stakeholders are insufficient; therefore larger and more frequent meetings need to be considered.
Ability to Acquire and Manage New Election Technologies
The Elections Act of 2011 provides for the integration of appropriate technology in electoral processes. As per its mandate and in response to the election challenges of 2007, the IEBC introduced several new technologies to address specific election problems. The first was electronic voter registration (EVR) and the electronic poll book. The use of biometric features such as fingerprints and photos, enables the easy tracking of multiple registrations. It also enhances efficiency and accuracy, as it allows on-the-spot checking of voters’ details. The EVR has been successfully used in the 2010 national referendum and in all parliamentary and civic by-elections since then. The IEBC also introduced an electronic vote tallying and transmission system in 2012 (EVT) to address delays in declaring final results, which largely contributed to the post- election crisis. It is the IEBC’s ambition to fully automate electoral processes, including e-registration, e-voting and e-transmission of results.
Notes
[1] Kriegler and Waki Report on 2007 Elections in Kenya, April 2009.
[2] Constitutional Amendment, Article 41a.
[3] Chapter 15 of the constitution of Kenya.
[4] Articles 88(5) and 249(2) of the constitution.
[5] IEBC Act of 2011.
[6] IEBC Act of 2011, Fourth Schedule—Procedure for Appointment of Chairperson and Members of the Commission.
[7] Elections Act of 2011, Section VI.
References
Ballot, The, Official Newsletter of Interim Independent Electoral Commission, 1/1 (February 2011)
Commonwealth Observer Group, Kenya General Elections, 27 December 2007
Dundas, Carl W., Close Elections and Political Succession in the African Union (Bloomington, IN: Author House, 2012)
Dundas, Carl W., The Lag of 21st Century Democratic Elections: In the African Union Member States (Bloomington, IN: Author House, 2011)
Litscher, Jonathan, Mediation Support Project, ‘Kenya, The National Accord Reconciliation Act 2008’
Kenya National Dialogue and Reconciliation, Reforms and Preparedness for Elections Review Report, May 2012
National Democratic Institute, ‘Statement of the Pre-election Delegation to Kenya’, May 2012
Ongoza, Z. Elisha and Otieno, Willis E., Handbook on Kenya’s Electoral Laws and Systems (Johannesburg: Electoral Institute for Sustainable Democracy In Africa, 2012)
Progress project review of the Coordination and Liaison Office of the African Union Panel of Eminent African Personalities, 2009–2010
Yard, Mike, IFES chief of party in Kenya, public seminar on Kenya’s new voting technology ahead of the March 2013 general elections, June 2012
