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Memorandum to the Joint Parliamentary Select Committee on matters relating to the IEBC and Electoral Process Presented by the Participants of the Multi Sectoral Forum

 

On Monday 18th July 2016, your esteemed committee during a session with religious leaders was informed that representatives from various institutions would gather together in a Multi Sectoral Forum (MSF) to discuss and build consensus on maters relating to the Independent Electoral and Boundaries Commission (IEBC) and the electoral process.

The Multi-Sectoral Dialogue Forum (MSF), met as scheduled, bringing together more than 420 delegates drawn from 17 sectors: Kenya Conference of Catholic Bishops; National Council of Churches of Kenya; Supreme Council of Kenya Muslims; Evangelical Alliance of Kenya; Hindu Council of Kenya; National Muslim Leaders Forum; Seventh Day Adventist Church; Organization of African Instituted Churches; CSO Reference Group; Election Observation Group; Kura Yangu Sauti Yangu Coalition; NGO Council; Central Organization of Trade Unions; Kenya Women of Faith Network; Youth Agenda; Universities and Colleges Students Peace Association of Kenya; and, United Disabled Persons of Kenya. The list of participants is attached to this Memorandum.

The delegates met at the Christian Students Leadership Center (Ufungamano House) on 19th and 20th July 2016 and now wish to present to your honourable Joint Parliamentary Select Committee this memorandum that seeks to address the four thematic areas that your request for presentations identified.

 

AS REGARDS THEMATIC AREA 1

As regards the allegations made against Commissioners and the Secretariat of the Independent Electoral and Boundaries Commission, specifically on their credibility, impartiality, integrity and independence, the MSF outlines as follows:

i)                   The Commissioners of IEBC and its Secretariat have faced various allegations over the past three years. The grounds raised by the critics of IEBC could be considered  material in that they touch on integrity, the conduct of elections and loss of public confidence. Nonetheless, we would prefer to leave it to the critics, investigators and lawyers to establish the veracity and potency of the allegations made.

ii)                This MSF considers that as a result of the allegations and the recent demonstrations that heightened emotions against the IEBC Commissioners, the body as currently constituted does not enjoy the confidence of Kenyans to manage and deliver a credible election in 2017.

iii)              We further note that with the next elections scheduled to be held in August 2017 as stipulated by the Constitution of Kenya 2010,  it is risky to have in office IEBC Commissioners whose term in office will end on 9th November as stipulated in the Constitution since that will be in the middle of an election cycle and dispute resolution processes.

iv)              On account of these risks, we submit that it is prudent to have the IEBC reconstituted to ensure there is a credible elections manager that has adequate time to plan and carry through the entire process.

v)                 The MSF is of the view that  the  reconstitution will allow us  address both the credibility crisis and the election timelines challenge referred to above.

 

 

 

AS REGARDS THEMATIC AREA 2

On legal mechanisms for the vacation from office of the current Commissioners and the Secretariat of the Independent Electoral and Boundaries Commission in accordance with the Constitution, the MSF recommends as follows:

i)                   This MSF recognizes that the Constitution of Kenya 2010 through Article 251 provides for the removal from office of Commissioners of Independent commissions through establishment of a tribunal to investigate one against whom a petition has been made to Parliament.

ii)                This MSF however finds that a tribunal process to try and prosecute the allegations against the Commissioners would most likely consume most of the remaining time between now and the next elections. We further find that

  1. A verdict of innocence through the tribunal will not cure the misgivings about the Commissioners in the minds of Kenyans.
  2. A verdict of guilt on the other hand will not preclude the right of the Commissioners to seek further legal redress.

iii)              In order to deal with the issues above, we propose a transition in the IEBC through a negotiated process. This will allow a new team to have adequate time to prepare for and oversee the next elections.

iv)              During the mediation process, we met the Commissioners severally and they repeatedly indicated that they are willing to vacate office through a negotiated settlement anchored in law.

v)                 Our recommendation is that this Joint Parliamentary Select Committee negotiates with the Commissioners to arrive at terms agreeable to both parties especially on their severance package. It may be prudent to include representation from the Treasury and Attorney General's Office during the negotiations. The religious leaders are willing to provide mediation support should that be required.

vi)              Such an  agreement will then be received as a notice of resignation of the Commissioners which will allow them to remain in office until new Commissioners are sworn in so as to ensure there is a properly constitution commission at all times.

vii)            Recognizing that the Constitution of Kenya 2010 lays the mandate of hiring staff on the Commission (Article 252 (1) (c)), the Joint Parliamentary Select Committee could consider making concrete recommendations to the new IEBC Commissioners on some key action points including undertaking lifestyle audits of the senior members of staff and hiring of new directors and CEO if need be.

 

AS REGARDS THEMATIC AREA 3

On legal, policy and institutional reforms to strengthen the IEBC so as to ensure the August 2017 elections are free and fair and are administered in an impartial, efficient, simple, accurate, verifiable, secure, accountable and transparent manner, the MSF recommends as follows:

a)     Composition of the Independent Electoral and Boundaries Commision and Secretariat

i)                   Review the Independent Electoral and Boundaries Commission Act to set the number of Commissioners at nine (9).

ii)                Reivew the Independent Electoral and Boundaries Commissions Act (Article 6 (1)) to remove the the provision that the Chaiperson of the Commission be a person who is qualified to hold the office of Judge of Supreme Court.

iii)              Review the Code of Conduct for Commissioners and Staff to provide for among others, the establishment of mandatory operational Committees, their terms of reference and their accountability mechanisms.

 

b)     Appointment, term of office, terms of service and removal from office of the Commissioners and Secretariat of the Independent Electoral and Boundaries Commission

 

i)                   The Joint Parliamentary Select Committee facilitates the establishment of a recruitment panel to appoint new Commissioners. The Panel to carry out the receiving of applications, shortlisting of applicants for the position of Chairperson and Commissioners; to select the 9 Commissioners including the Chairperson and submit the list to Parliament for vetting and onward transmission to the President for appointment.

 

The panel should comprise of the following nine Members:

a)     Two representatives appointed one by the coalition with the highest number of Members in Parliament and the one by the coalition with the second highest number of Members of Parliament

b)     A representative of non parliamentary political parties appointed through the Political Parties Liason Committee

c)     A representative of the Law Society of Kenya (LSK)

d)     Three representatives nominated by religious institutions

e)     A representative of the Women, and,

f)      A representative of the Civil Society Organizations involved in the promotion of democracry and management of elections

g)     Joint Secretaries to be provided by the Public Service Commission and Attorney General’s Office

ii)                The new Commissioners to serve for a single term of six years

iii)              The new Commissioners should be appointed in a staggered manner so that in future there shall not arise a situation where all Commissioners exit office at the same time. The proposal is that five (5) Commissioners are appointed immediately and the other 4 one year after the 2017 Elections.

iv)              All the Commissioners to serve on a part time basis. This shall be a policy Commission that gives strategic direction and carries out oversight over the Secretariat of the Commission headed by the Chief Executive Office (CEO).  The Commissioners in exercising their oversight powers will ensure the operations and functions of the Commission are executed by the CEO and senior staff of the Commission according to the law and the Constitution.

v)                 Senior Staff at the level of managers and directors in the IEBC should serve on a contract basis for a single specified term and then leave in line with the jury system to allow other Kenyans to have the honor of service.

vi)              In future, removal of Commisioners from office must follow the process as laid out in the Constitution in order to secure their tenure and independence and restore public and political trust in constitutional commissions. Towards this, review the Kenya National Commission for Human Rights Act to include provisions that the Commission will investigate and cause to be prosecuted any person or persons who seek to use non-constitutional means to force the removal of members of Constitutional Commissions.

 

c)     On Establishing the Electoral Fund

The Joint Parliamentary Select Committee should take up the responsibility of establishing an Electoral Fund that will give the Independent Electoral and Boundaries Commission (IEBC) independence and autonomy in budgeting, planning, execution of mandate and accountability to the people of Kenya.

 

AS REGARDS THEMATIC AREA 4

As regards recommendations on legal, policy and institutional reforms to improve the electoral system and processes so as to ensure the August 2017 elections are free and fair and are administered in an impartial, efficient, simple, accurate, verifiable, secure, accountable and transparent manner, the MSF recommends as follows

 

a)     On voter registration

i)       The new Commissioners to facilitate the auditing, updating and verification of the voters register to ensure that Kenya has a credible and reliable  voters’ register which is devoid of errors.

ii)    As regards the updating of voter register:

  • Article 88 (4) (b) of the Constitution of Kenya 2010 provides for the regular revision of the voters’ register.
  • Section 8 of the Elections Act, also provides for the regular update of the register.
  • During the recent bi-elections in Malindi and Kericho, it was noted that the Biometric and manual registers were not match as the former had more names. The IEBC cited update of the record as an ongoing process. However, the manual and the computerised copy of the register need to be synchronised.

 

Recommendation:

  • The MSF recommends that the phrase ‘regular’ in the Elections Act be revised so as to indicate the period within which the register will be updated, preferably a duration of every 6 months. This will also assist with the synchronisation of the two registers.
  • This MSF also recommends that the law be changed to require that the Voters’ Register is gazetted at least 3 months before voting day.

 

 

 

b)     Voter education

Recommendation:

  • The MSF recommends that the Justice Department works closely with MSF stakeholders to establish a national civic education programme / initiative which shall work with the IEBC to ensure that Kenyans receive quality, timely and well coordinated civic and voter education to raise the competence of citizens in the electoral process.
  • Civic and voter education should be funded substantively by the taxes of the people of Kenya and be under the oversight of the IEBC
  • Voter education to be provided before periods of mass voter registration.

 

c)     Nomination and registration of candidates

Recommendations:

  • The MSF recommends that the Registrar of Political Parties and the IEBC should ensure that Political Party Nominations are carried out and done by only the registered Members of the Political Party in order to restore order in political party nominations
  • Consideration should be put on requiring the Independent Electoral and Boundaries Commission to be responsible for supervising the nominations for elective positions for political parties that receive state funds
  • State funding for political parties should be enhanced to include funds for the purpose of enabling the Independent Electoral and Boundaries Commission to supervise the party nominations for the parties funded by state

 

d)     Campaign Management

Recommendations:

  • The MSF recommends that the IEBC sets up County Campaign Regulation Committees under their Regional Coordinators and Constituency Elections Coordinators to ensure that electoral offences are deterred or punished. The Committee will facilitate collection of adequate evidence. The regulation Committees have the responsibility of stamping out the culture of impunity that is prevalent during the campaign period.
  • The County Campaign regulation Committees to enlist the services of the National Police Service (Including the Department of Criminal Investigations) with the objective of speedy gathering of evidence and enforcement of the elections laws.

 

e)     Use of information technology in elections

 

Recommendations:

  • The MSF supports the use of information technology in voter registration, voter identification, civic and voter education and in result transmission while observing the guidelines that we have detailed in the attached Draft Bill. These proposals endeavour to meet the following principles:

-         Time requirement and verification for the use of electoral technology

-         Capacity and competence of Commission staff and stakeholders to operate the electronic equipment

-         Transparency and integrity in the procurement, testing, and verification of the electronic equipment and systems

-         Cost implication in the use of the technologies

 

f)      Voting process

 

  1. Advance Voting and facilitating better voting processes
  • Article 38 provides for the right all persons to vote. However, a certain class of persons has not been able to exercise this right. They include police officers, clerks of IEBC in another polling stations, and election observers.
  • Persons of unsound mind are barred from voting
  •  Persons with Disabilities are disadvantaged during the voting exercise

Recommendations

  • Define who is a person of unsound mind – and these should be allowed to vote unless they are not capable of making a rational decision at the time.
  • Have specific provisions that Persons With Disabilities be involved in civic education and other electoral processes and be provided with persons acceptable to them- who can assist them in the polling station. Examples here include provision of the blind with Braille and sign language interpreters for the deaf.

 

  1. Diaspora Vote
  • Article 38 (3) provides for the right of citizens to be registered as voters and to vote.
  • In a Supreme Court ruling, Kenyans living in the Diaspora totalling to about 3 million will be included in the next general election.
  • The Kenya Ministry of Foreign Affairs has embarked on registering these voters. A conflict thus arises as to the mandate of the officials in carrying out this exercise whereas it is under the purview of the IEBC.
  • The cost of holding the elections in the Diaspora is also a cause for concern with the likelihood or corruption and bias towards the government of the day, as well as the cost implication of sending IEBC officials to each mission to oversee the voting.
  • The voting by Kenyans in Diaspora will be available Presidential vote only as the voters may not be in tune with the local leadership on ground, for example the MPs, and County assembly representatives.
  • This also includes the registration prisoners.

 

 

Recommendations:

  • This MSF recommends that the Elections Act be amended to provide for a mechanism and framework within which registration of citizens in the Diaspora will be undertaken; the persons who will oversee this exercise; and the manner in which the elections in the Diaspora will be undertaken and tallied.
  • This MSF recommends that the IEBC explores electronic voting for the Kenyans in Diaspora to address the issue of logistics and cost
  • Political Parties and elections monitors to be involved when IEBC is conducting voter registration in prisons and other enclosed are Diaspora.

 

  1. Discouraging Selection vs Election
  • The citizenry has the right to vote and where a candidate withdraws in the process, the voters  are denied of this right. The democracy of political parties is also curtailed. The IEBC incurs costs when it prepares to conduct an election.

Recommendations:

  • This MSF proposes that the Elections Act is amended to provide that any persons withdrawing beyond a particular stage in the electoral process will be subject to penalties, taking into consideration the financial implication undertaken by the Commission in preparation for the election. They should also be barred from running in future elections for a period of time.

 

g)     Declaration and transmission of election results

  1. 1.      Determination of the Presidential vote
  • Article 138 (4) provides for the procedure at the Presidential elections
  • This brings out a question between the total votes cast vis a vis the total valid votes cast to determine the 50+1 threshold
  • The Supreme Court in its ruling determined that that the interpretation refers to the total valid votes cast

 

 

Recommendations:

  • The MSF recommends that the interpretation by the Supreme Court be integrated in the law.

 

  1. 2.      Announcement of election results
  • Article 138 (3) (c) provides that after the counting of votes in the polling stations, the Independent Electoral and Boundaries Commission tallies and verifies the count and declares the result.
  • The concern with this is that returning officers have previously annulled results that have already been announced at polling stations causing uncertainty and tension in the electorate.

 

Recommendations

This MSF recommends that the Elections Act be amended to provide that the results announced at the polling station shall be final and definite.

 

h)     Allocation of special seats

 

Recommendations:

i)       That the Political Party Convention where the Party List shall be voted for by the Political Party members be gazetted by the IEBC in consultation with the National Executive Committee (NEC) of the Political Party

ii)    The Political Parties Act be amended to ensure that affirmative action seats truly enhances the participation of the youth, persons with disability, minority groups and women and that non-representative and illegitimate persons do not get nominated to take up these seats.

iii)  That the political parties be required to provide democratic competition by the affected constituencies within the party to select people for special seats by providing for mechanisms of these constituencies carrying out their election.

 

i)       Dispute resolution ( including nominations and petitions)

 

Recommendations:

i)       The MSF recommends that there be an amendment or deletion of Article 88 (1) (e) so that the jurisdiction to hear and determine disputes relating to or arising from nominations be solely vested in the Political Parties Dispute Tribunal (PPDT)

ii)    That the jurisdiction over disputes relating to presentation of nomination papers to the Commission be vested in the Commission

 

j)      Strengthening of Political Parties

 

  • That The Registrar of Political Parties has been in an acting capacity for the last five (5) years. Thus the appointment of the Registrar and the three (3) deputies has not taken place.
  • Notable are the amendments that have been made to the Political Parties Act with regard to the appointment of the Registrar, oscillating between a “selection panel” and appointment by the “Public Service Commission”. The recent amendment introduced the words “when a vacancy arises” where in actual fact there is no vacancy in the office.

 

 

Recommendations:

  • The Elections Act needs an amendment providing for the appointment of the Registrar of Political Parties and the three deputies through an independent panel as it is an independent body.
  • The acting capacity of the Registrar of Political Parties at any time should not be for more than a period of six (6) months

 

k)    Enhancing the Participation and representation of women, youth and persons with disabilities

Recommendations:

  1.  Legislate to make it clear that the position of Women Representative shall be open only to women candidates.
  2. Parliament must take responsibility and guide the country to enact a formula on how to realize the ‘Not more than two thirds’ gender principle before the 2017 elections as this is a serious constitutional implementation issue and not a women’s issue.
  3. Parliament legislates on Article 100 of the Constitution conclusively.
  4. Parliament withdraws the Chepkonga Bill (progressive achievement of the 2/3 gender rule) to demonstrate commitment to implement the Constitution faithfully.

 

l)       Enactment of a Referendum Law

It was noted that the County Government Act provides for referendum within the county. The absence of a referendum law is a gap at the national level.

 

Recommendations:

That Parliament takes initiative to enact a Referendum Law for application and use at both nation and county levels.

 

 

 

Conclusion

The members of the Multi Sectoral Dialogue Forum (MSF) appreciate the opportunity to present this memorandum, and especially note that our support to the electoral processes is a standing commitment.

We have attached herein as part of this memorandum two draft bills, one for amendment of various laws relating to elections and one for amendment of the Constitution.

The MSF shall be available to take this conversation further in the coming days and weeks as need arises.

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