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The Body choosing Kenya’s Election Commission is being Overhauled – How this could Strengthen Democracy

by John Mukum Mbaku
February 4, 2023
Reading Time: 7 mins read
William Ruto Is Sworn-In As Kenya’s President In September 2022. Former President Uhuru Kenyatta Looks On | Tony Karumba/Afp Via Getty Images

William Ruto is sworn-in as Kenya’s president in September 2022. Former President Uhuru Kenyatta looks on | Tony Karumba/AFP via Getty Images

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Kenya has new rules for choosing the people who run its elections. President William Ruto has signed into law the Independent Electoral and Boundaries Commission (Amendment) Bill. It changes the composition of the panel that selects people to serve on the country’s Independent Electoral and Boundaries Commission.

The commission is a state institution that has the task of enhancing and supporting constitutional democracy in Kenya. It conducts elections, registers citizens as voters and maintains the voters’ roll. It also fixes the boundaries of electoral constituencies and wards. It settles electoral disputes, registers candidates for election and conducts voter education.

But since it was established in 2011, the commission has been at the center of Kenya’s history of post-election violence.

In 2013, 2017 and 2022, the losing political parties accused it of failing to administer elections fairly and lawfully.

In 2017, the Kenyan supreme court accused the commission of “bungling” the presidential election. In the 2022 elections, the then vice-chairperson of the commission, Juliana Cherera, disowned the results of the presidential poll before the official announcement.

Raila Odinga, who lost that poll, called for reforms that would make the electoral commission a much fairer referee of the country’s elections.

The new law seeks to streamline the process of appointing members to the electoral commission, making the selection process more participatory and reflective of the country’s diversity.

And it comes at a critical moment. Seven commissioner positions are currently vacant.

A weak electoral agency poses four major threats to Kenya’s democracy: it will fail to deliver fair, free and credible elections; it will disrupt improvements in the country’s transition to democracy; it will prolong the culture of post-election violence; and it will divide the nation’s diverse ethnocultural groups.

It is, therefore, vital that the Independent Electoral and Boundaries Commission be a strong and fully functioning organization staffed by Kenyans who are dedicated to democratic governance.

What’s changing under the new law

Selecting electoral commissioners is a complex job.

The new law brings more independent commissioners and associations into the selection process. Previously, only three agencies nominated the seven commissioners: the Parliamentary Service Commission, the Inter-Religious Council of Kenya and the Law Society of Kenya (LSK).

Now there are five.

The newcomers are the Political Parties Liaison Committee and the Public Service Commission (PSC). They open the door for political parties and the public service to participate in this critical process.

It’s important that the selection panel includes state and non-state organizations that promote election integrity. Only individuals who are citizens of Kenya and meet the integrity requirements in Chapter 6 of the constitution can serve on the selection panel. These individuals must hold a degree from a university recognized in Kenya.

The vacancies

Three of the current vacancies in the commission were expected: these commissioners’ terms had expired. But four other commissioners quit under a cloud of suspicion.

Cherera, Justus Nyang’aya and Francis Wanderi resigned after being suspended for their conduct during the 2022 election. They had alleged that commission chairperson Wafula Chebukati had altered poll results in favor of Ruto. Another commissioner, Irene Masit, was also suspended.

She now has charges pending against her before a tribunal investigating the matter.

Why elections matter

Elections are a cornerstone of any democracy. They help a nation build and sustain democratic and development-enhancing institutions.

They are a check on government. Elections put the power in ordinary people’s hands to change their government and choose more effective leaders for public service. They also give historically marginalized groups a voice.

To perform these functions, elections must meet certain minimum standards. They must be regular, fair, free, competitive, inclusive, transparent and credible. They must be conducted in strict conformity with the constitution.

That’s why a strong, independent and functioning electoral agency is so vital.

Risks of dysfunction

In Kenya, a weak and dysfunctional electoral commission would have dire consequences.

First, the failure to conduct elections that are considered by the majority of Kenyans as free, fair and credible could lead to the type of violence that the country experienced after the 2007 presidential election. More than 1,000 people died.

Second, a weak commission can derail improvements in Kenya’s electoral system. A strong commission sets codes of conduct for candidates and political parties. This helps guard against various forms of political opportunism, including corruption.

Third, a dysfunctional electoral commission can be manipulated by politicians and their supporters to monopolize political spaces. This situation has played out in Cameroon, where the ruling party has marginalized the opposition to remain in power since 1990. Similarly, in Togo, President Faure Gnassingbé has monopolized political spaces since 2005.

Fourth, in Kenya, the electoral commission is responsible for creating electoral boundaries. Any weakness in the commission can be exploited to create boundaries that benefit certain politicians and their supporters.

This would undermine democracy and create distrust in the country’s democratic institutions.

The new law doesn’t meet the expectations of all of Kenya’s political constituencies – some individuals and groups believe that their voice in the selection panel has been diluted. However, it’s important for all Kenyans to recognize these reforms as an effort in the right direction – towards a stronger and more inclusive commission.The Conversation

John Mukum Mbaku, Professor, Weber State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Tags: CameroonDemocracyElectionsElectoral ReformIEBCInclusionIndependent Electoral and Boundaries Commission (IEBC)KenyaKenya post-election violenceOppositionPetitions Raila OdingaSupreme Court of KenyaTogoUhuru KenyattaWilliam Ruto

John Mukum Mbaku

John Mukum Mbaku is a Brady Presidential Distinguished professor of economics and John S. Hinckley Fellow at Weber State University. He is also a nonresident senior fellow at The Brookings Institution in Washington, D.C., and an attorney and counselor at law, licensed to practice in the Supreme Court of the State of Utah, the U.S. District Court for the District of Utah, and the U.S. Supreme Court. He received his PhD in economics from the University of Georgia and his JD in law and graduate certificate in natural resources and environmental law from the S. J. Quinney College of Law at the University of Utah. He is a resource person for the Kenya-based African Economic Research Consortium. Professor Mbaku also holds a B.S. (Chemistry) from Berry College (Mount. Berry, Georgia), a B.A. (French Language and Literature) from Weber State University (Ogden, Utah), and an International MBA (IMBA) from the University of South Carolina. His research interests are in public choice, constitutional political economy, sustainable development, law and development, international human rights, intellectual property, rights of indigenous groups, women and children, trade integration and institutional reforms in Africa. Mbaku is the author of Corruption in Africa: Causes, Consequences, and Cleanups (Lexington Books, 2010) and (with Mwangi S. Kimenyi) of Governing the Nile River Basin: The Search for a New Legal Regime (The Brookings Institution Press, 2015) and Protecting Minority Rights in African Countries: A Constitutional Political Economy Approach (Edward Elgar, 2018). On May 22, 2017, John Mukum Mbaku, was admitted and qualified as an Attorney and Counsellor of the Supreme Court of the United States. At Weber State University, John Mukum Mbaku teaches courses in principles of economics, intermediate microeconomics, international trade, business calculus, and economic development. He also works with international students and helps them adjust to college life in the United States. Professor Mbaku also engages with community groups and helps them understand issues such as globalization, outsourcing, and immigration and how they affect economic activities in the United States. Professor Mbaku also visits local schools to talk to students about the U.S. constitution, constitutionalism and the rule of law in the United States and other countries. He is a consultant to several domestic and international news organizations, as well as multilateral organizations (e.g., the African Development Bank), on governance issues in Africa and has appeared on several domestic and international news programs to discuss elections, corruption, sustainable management of natural resources, including water, and various governance-related issues in Africa.

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