Politicians begin another round of post-election crisis talks to address grievances discussed comprehensively in previous national forums, with remedies proposed over the years but with little action.
Audit of election results, reconstitution of the electoral commission, delimitation of boundaries, inclusivity in public appointments and two-thirds gender requirement feature prominently in the Bomas of Kenya talks convened by President William Ruto and Opposition leader Raila Odinga.
All these items for discussion by the National Dialogue Committee have featured in reports by independent institutions dating back to 2007, but successive governments have given them piecemeal implementation. This has essentially left a festering wound that is only revisited whenever there is a political standoff, mostly stemming from the presidential election disputes.
Proposal to reintroduce Official Leader of Opposition and entrenchment of Prime Cabinet Secretary is part of many previous efforts to deal with the winner-take-all presidential system of governance that has been blamed for post-election violence.
The botched Building Bridges Initiative (BBI) promoted last year by then President Uhuru Kenyatta and Mr Odinga was one of the attempts. Dr Ruto had opposed it but his side has now proposed creation of the positions in the talks with Mr Odinga.
Currently, an audit of the 2022 General Elections is one of the most contested items for talks between the ruling Kenya Kwanza and opposition Azimio La Umoja One Kenya Coalition.
Interestingly, a report by a commission of inquiry following the 2007 disputed presidential election had provided a solution to the matter.
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The Independent Review Commission (IREC), which was chaired by former South African judge Johann Kriegler, made a raft of far reaching recommendations, among them on the audit of presidential results, constituency delimitation and interference in political parties, especially during party nominations.
“Institutionalise the practice of post-election audits and evaluations and improve the quality of the objective data involved. Post-election audits should be conducted by external auditors and made public,” recommended the Kriegler report published in 2008. There has never been an independent audit of the election results for the 2013, 2017 and 2022 presidential elections.
Instead, it is the Independent Electoral and Boundaries Commission (IEBC) – which is always discredited by one of the parties in such disputed elections – that has ended up carrying internal evaluation of its performance in the previous polls.
“Successive governments have been generous in forming commissions of inquiry with no intention to implement them. It seems they are formed to cool down political temperatures,” says Yatta MP Charles Kilonzo.
He adds: “The problem is that they are never done in good faith. There are also the back door negotiations. Basically, the talks are for the public to see something is being done when the leaders have already decided on what they want.”
The Kriegler report added: “Ample time must be given for verifying provisional results, so that they are only declared final/official, when there is no risk that errors can still be found or non-frivolous objections raised.”
Wiper party leader Kalonzo Musyoka (left) and National Assembly Majority Leader Kimani Ichung’wah during the signing of the bipartisan talks framework agreement on August 29,2023.
Photo credit: Wildred Nyangaresi | Nation Media Group
One of the grounds of Mr Odinga’s presidential petition was that four out of seven IEBC commissioners disowned the outcome. Mr Odinga’s agents had also claimed that they were not given time to verify the final results. The Supreme Court, however, dismissed his petition.
On boundary review, IREC recommended that the process of delimitation be made accessible to the public through a consultation process and enough time provided for it to discuss and challenge electoral commission decisions.
“IREC recommends that the basic principle for the delimitation of constituencies should be the equality of the vote, and the maximum departure from that principle should be clearly defined in the law.
“Criteria such as density of population, population trends, means of communication, geographical features and community of interest should be retained, but they should interfere minimally with the basic principle of equality of voting strength,” recommended the report.
Parliament, however, amended the report to protect 27 constituencies whose population fell below the set threshold. The report had recommended that Parliament should not have the power to override the Boundary Review Commission (BRC) decisions, with a provision that they provide their views only before the commission makes its decision.
Boundary delimitation is due but the process is shrouded in secrecy and the country risks being plunged into a constitutional crisis.
One of the key documents- Volume V of the 2019 Kenya Population and Housing Census that details population by constituency and ward- has never been made public. Just like the BBI that had proposed additional 70 constituencies without engaging IEBC, the current talks give the political class an upper hand in deciding how the review would be conducted.
Makueni Senator Dan Maanzo admits that all the agenda items already have recommendations on how to fix them based on past reports.
“The whole matter is patched up in different reports. The uniqueness in the current situation is that both sides have something they want to achieve. We are repeating the same things but circumstances begin to change and the powers that be are aware,” says Mr Maanzo.
He adds: “Ruto appears to be looking for constitutional reforms through Parliament and that is where the danger is because some of the items for discussions can only be implemented through a referendum. We may end up the BBI way.”
The constitution provides for a periodic review of the names and boundaries of constituencies at intervals of not less than eight years and not more than 12 years. With the last review having happened in March 2012, the IEBC – which currently has no commissioners and is basically dysfunctional – is expected to have ensured that validation of constituency boundaries is on track to meet the March 2024 deadline.
Independent commissions like the National Cohesion and Integration Commission (NCIC) and the National Gender and Equality Commission (NGEC) were also established to, among other things, ensure inclusivity and to address gender issues, respectively. But two communities continue to dominate public service, according to reports by the Public Service Commission (PSC) and Parliamentary committees.
Kenya Revenue Authority (KRA) recently admitted to MPs how the recruitment of Revenue Service Assistants (RSAs) was influenced by senior political figures. As a result, two dominant ethnic communities of Kalenjin and Kikuyu took 788 (57 per cent) slots out of the 1,406 vacancies.
NCIC chairman Samuel Kobia told Saturday Nation that the commission was planning to submit its views before the committee co-chaired by Wiper Leader Kalonzo Musyoka and National Assembly Majority Leader Kimani Ichung’wah on political, economic and social stability of the country. The commission recently decried the threat for cessation by the opposition, ethnic profiling of civil servants, re-emergence of organised crimes as well as religious extremism and political intolerance.
From right: Bungoma County Woman Representative Catherine Wambilianga, EALA MP Hassan Omar and Senate Majority Leader Aaron Cheruiyot during the resumption of bipartisan talks between Kenya Kwanza and Azimio la Umoja One Kenya Alliance at the Bomas of Kenya Nairobi on 9 August 2023.
Photo credit: Wilfred Nyangaresi | Nation Media Group
“The only thing that will ensure implementation of some of the recommendations is the political goodwill from the President. Right now we are having a discussion on political interference, when the President has a hand in the issue. In parliament he has bought off opposition politicians to join his side,” says DAP-K Secretary General Eseli Simiyu.
In 2016, just a year to 2017 polls and amid political push to oust Isaac Hassan-led commission, a Joint Select Committee co-chaired by then Siaya Senator James Orengo and his Meru counterpart Kiraitu Murungi made recommendations on reconstitution of the poll body.
The commission has witnessed perennial purge with the political class always seeking to influence recruitment of the commissioners, despite existing law on the procedure of their hiring. The report by the bi-partisan team that represented then ruling Jubilee of Mr Kenyatta and opposition National Super Alliance (NASA) of Mr Odinga, made a raft of recommendations that if implemented would have cured the current crisis.
“That for the future, the processes of recruitment of new commissioners be commenced at least six months before the expiry of the term of their term,” recommended the report.
The IEBC selection panel tasked with recruiting new commissioners was appointed by President Ruto in February, more than a month after commission chairman Wafula Chebukati, commissioners Abdi Guliye and Boya Molu retired on January 17. This was after Vice-chairperson Juliana Chererera, commissioners Francis Wanderi and Justus Nyang’aya resigned. Commissioner Irene Masit was kicked out later by a tribunal formed by the President.
“If the constitution is fully implemented, if the legislature takes its rightful position as the most powerful arm of government in making law and checking the executive and judiciary, I think Kenya will move forward. Otherwise, talks for talks sake will remain moot,” says Prof David Monda.
“An endless merry-go-round of political musical chairs that puts private individuals over public issues. I think we put individual interests before public issues,” he adds.
In March 2018 when Mr Kenyatta and Mr Odinga made a surprise joint press briefing at the steps of Harambee House on what became the famous handshake, they listed ethnic antagonism and competition, lack of national ethos, inclusivity, devolution, divisive elections, safety and security, corruption and shared prosperity, responsibilities and rights as some of the dragons they had planned to slay.
Mr Kenyatta and Mr Odinga told the nation that they were ‘intent on not witnessing the country suffer similar future cycles of the same tribulations it has since 1963.”
“They both commit to fight hard for inclusivity and to make sure, in an accountable and impactful way, that public institutions work to deliver to all Kenyans at the national and county level,” their joint statement read.
A report by the Commission of Inquiry into the Post-Election Violence (CIPEV) of 2007 popularly known as the Waki report stated ethnic violence is used to settle political differences.
“In conclusion the CIPEV observed that the country must also make decisions to change the way politics is conducted, as well as to its intersection with other issues related to land, marginalization and inequality, and youth. Short of that, violence including that related to elections will continue to appear and will be ignited ever more readily,” recommended the report.
There have been sporadic flare-ups between communities residing at Sondu on the border of Kisumu and Kericho in the recent past. Some of the clashes coincided with the anti-government protests called by the opposition, in which the police were accused of using excessive force on demonstrators resulting in deaths.
When he came to power, President Ruto made shocking revelations about extra-judicial killings, including the river Yala killings.
He spoke in October last year, as he ordered the disbandment of the Directorate of Criminal Investigation’s Special Service Unit (SSU) over links to extrajudicial killings.
“There was a container here in the Nairobi Area where people were being slaughtered, in a police station. How did we end up here? What kind of rogue institution was that?” posed the President.
There has, however, been no major reforms in the police service despite various reports making substantive recommendations. In the recent anti-government protests, the opposition accused the government of deploying a police death squad to eliminate demonstrators.
In 2009, a report by Prof Philip Alston, the Special Rapporteur on extrajudicial executions, had warned about police death squads.
The report also singled out the judiciary as an obstacle in the path to a well-functioning criminal justice system.
