This is the second of two articles on the Independent Electoral and Boundaries Commission (IEBC). Read the first one here.
It is practically impossible to remove commissioners of the Independent Electoral and Boundaries Commission from office. This difficulty was designed on purpose, and like any Article in our Constitution, it also has a history.
Security of tenure was essential for independence. There is nothing more hypocritical than independence without the security of tenure.
The Constitution jealously tried to guard this independence in certain key offices that should not be subject to any external or partisan manipulation.
The drafters borrowed this principle from, among others, the Kiplagat case, where the court ruled that TJRC had no legal capacity or authority to bring an application against Bethwel Kiplagat, its chairman.
The court noted that the application was lodged in court without due consideration and regard for the legal provisions that had been cited by the applicant to compel the Chief Justice and to stop Mr Kiplagat from performing his statutory functions.
It was partly this intricate TJRC drama that led the Constitution's drafters to stipulate clear procedural guidelines for the removal of commissioners.
In Evans Nyambega Akuma v. Attorney General & 4 Others, the court had to decide whether the third respondent - Johnston Kavuludi - could be removed from the position of chairman of the National Police Service Commission by the High Court.
NOT CORD OR JUBILEE
It was held that the procedure for removal was set out in Article 251 of the Constitution of Kenya. In it, a person desiring the removal of a commissioner may submit a petition to the National Assembly, which may forward it to the President, who in turn sets up a tribunal to investigate the complaints.
If the tribunal recommends the commissioner's removal, then the President has to act in accordance with that recommendation.
Since the petitioner had not followed the aforementioned procedures, the High Court could not purport to delve into the matter to the exclusion of the bodies properly mandated to do so.
Section 7 of the IEBC Act provides that the term of the commissioners shall be six years and that they shall serve on a full-time basis.
There is no provision that commissioners may be in office temporarily or for periods shorter than this, as had been suggested by the Cord coalition.
If the commissioners are to go, they must resign freely or a Kenyan must activate Article 251. The President is then required to form a panel to replace the IEBC commissioners within 21 days of a vacancy opening up.
The Act also provides for the selection of commissioners. The selection panel for the commissioners should consist of persons nominated by the President, the Judicial Service Commission, the Kenya Anti-Corruption Commission and the Association of Professional Societies of East Africa.
So, it is not for Jubilee and Cord to select and appoint commissioners, even though they will undeniably have a hand in the selection process.
SIX IN A DAY
The IEBC has unquestionably made some weighty blunders in the few but terribly complicated elections it has managed. However, the big question here is whether the commission could have done better.
Perhaps only a few people realise that the IEBC was set up for failure. Our expectations were unrealistically high and agency was given the impossible task of managing one of the most complicated elections in the world.
We went from electing three members in 2007 (President, MP and councillor) to electing six (President, governor, senator, MP, woman rep and MCA) in one day.
All these in a country where the last two censuses have never been officially published, an incomplete and inaccurate voter register exists and where an electronic system that purports to work without electricity was used.
Electronic identification of voters and electronic transmission of results was one of the worst blunders of 2013. We were lured into using electronic systems when only 20 per cent of the population was connected to electricity, with an insufficient road network.
FIXATED WITH PROPAGANDA
There was a sad percentage of corrupt or corruptible election officials, guards, and more importantly, a critical mass of cheating candidates. In these circumstances, the election was bound to fail. The IEBC had been set up for failure.
As the elections approached, it became extremely difficult to change the perception of defective results, one of the essential characteristics of democratic elections.
Sadly, this is what the Supreme Court petition revealed. The case evidenced many flaws in the system and its execution, and the court was clearly at pains to justify its decision.
International observers, however, agreed with the court's decision and said that the elections were mostly credible. Still, there were integrity doubts that led to the commission's CEO being replaced, and a number of key changes took place.
Why did we get fixated on the propaganda of "commissioners must go"? Why was this so important? Will it make a difference in future?
The commissioners have offered their resignations, provided their dues are paid until the end of their contract. If these resignations are not accepted, there is no way they can be changed following the procedure established by law in time for the next general election.
DEGREE OF MADNESS
Moreover, the accusations are against three or four of nine commissioners. So what will the tribunal do with those who have not been implicated or adversely mentioned? If they opt out or are dismissed by the President upon the special tribunal's recommendation, who will be appointed?
Who in his right senses would accept such an offer? Who would set himself or herself up for failure?
Any respected and intelligent person may need to have a certain degree of madness to join the IEBC, or perhaps be desperately broke or unemployed. Maybe anyone who accepts will require such conditions as to make him or her untouchable.
To join the IEBC in the current circumstances is to set oneself up for professional failure. It happened to Zacchaeus Chesoni, Samuel Kivuitu, and now Ahmed Issack Hassan. It will happen to their successors until we realise that the problem was not the chairman and the commissioners, but the impunity of a deeply corrupted environment where politicians, poll officials and police connive to cheat.
Unless we agree to prosecute election offenders, be they candidates, election officers or security agents, elections will come and go and the IEBC will always be the disposable diapers of our baby democracy.
Dr Franceschi is the dean of Strathmore Law