Re­deem key in­sti­tu­tions be­fore next elec­tions

Nairobi Law Monthly - - Analysis - DE­MAS KIPRONO

Fe­bru­ary 2016 marked eight years since for­mer Pres­i­dent Kibaki and Raila Odinga signed the Na­tional Di­a­logue and Rec­on­cil­i­a­tion Agree­ment. The “Na­tional Ac­cord” sought to pro­vide a peace­ful so­lu­tion to the po­lit­i­cal im­passe and vi­o­lence that had en­gulfed the country fol­low­ing the dis­puted De­cem­ber 2007 Gen­eral Elec­tion that saw over 1300 peo­ple killed, thou­sands in­jured, many raped and maimed, and over 500,000 force­fully dis­placed from their homes.

Through the agree­ment, the par­ties agreed to im­me­di­ately work to­wards stop­ping the vi­o­lence in or­der to re­store fun­da­men­tal rights and lib­er­ties; ad­dress the hu­man­i­tar­ian IDP cri­sis, pro­mote rec­on­cil­i­a­tion, heal­ing and restora­tion; fig­ure out how to over­come the pre­vail­ing po­lit­i­cal cri­sis; and find long term mea­sures and so­lu­tions in terms of con­sti­tu­tional, in­sti­tu­tional and le­gal re­forms, land re­forms, elec­toral re­forms, poverty, inequal­ity, un­em­ploy­ment, trans­parency, ac­count­abil­ity and an end im­punity.

The above is­sues were ear­marked as the rea­son Kenya, erst­while an is­land of peace in a sea of con­flict, had sunk to the brink of full blown civil war be­cause of the habit of sweep­ing is­sues un­der the rug and with the hope that no one would no­tice.

It thus fol­lows that the ac­cord pro­posed the cre­ation of a Truth Jus­tice and Rec­on­cil­i­a­tion Com­mis­sion to ad­dress his­tor­i­cal in­jus­tices since in­de­pen­dence; a Com­mit­tee of Ex­perts on Con­sti­tu­tional Re­view to pave a way for a new so­cial con­tract; and In­terim In­de­pen­dent Elec­toral and Bound­aries Com­mis­sion.

The ra­tio­nale was that we had to bring to the fore is­sues that have his­tor­i­cally pit­ted Kenyans against each other and the state, change the en­tire na­tional le­gal and in­sti­tu­tional frame­work to in­cul­cate and im­bue hu­man rights, equal­ity, ac­count­abil­ity, and trans­parency, and bring cred­i­bil­ity to elec­tions – the ac­tual thing that trig­gered the mas­sive vi­o­lence that had never been wit­nessed be­fore in Kenya.

By 2013, Kenya had gone through a rig­or­ous con­sti­tu­tion mak­ing process and a ref­er­en­dum that pro­mul­gated a pro­gres­sive Bill of Rights; devo­lu­tion to deal with dis­par­i­ties in re­source al­lo­ca­tion; an in­de­pen­dent elec­toral body; and a com­pe­tent and Ju­di­ciary; in­clud­ing pro­vi­sions on na­tional val­ues, ac­count­abil­ity, lead­er­ship and in­tegrity. Dur­ing the same year, the Truth Jus­tice and Rec­on­cil­i­a­tion re­port was pre­sented to Pres­i­dent Keny­atta.

As we com­mem­o­rate 8 years since the Na­tional Ac­cord, one would think Kenya has re­alised all in­sti­tu­tional items that she set out to do in or­der to ger­mi­nate a more per­fect repub­lic. But a closer look reveals pre­car­i­ous re­sults with re­gard to na­tion­hood, lead­er­ship, ac­count­abil­ity and ad­dress­ing his­tor­i­cal in­jus­tices. In fact, the Na­tional Assem­bly has all but halted im­ple­men­ta­tion of the TJRC be­cause of the po­ten­tial can of warms it can un­leash.

As it stands, the IEBC is headed by in­di­vid­u­als who have been ad­versely men­tioned as re­cip­i­ents of bribes in a UK crim­i­nal case where the al­leged bribe givers have al­ready been charged and con­victed. At the same time, the Supreme Court is be­ing rocked by al­le­ga­tions of bribery, while the ex­ec­u­tive and county govern­ments ap­pear to be suf­fer­ing from com­pul­sive loot­ing char­ac­terised by a to­tal bankruptcy of shame and de­cency. What is glar­ing is that no one has been held to ac­count. In fact, just re­cently, the Chief Jus­tice and the Pres­i­dent separately al­luded to the fact that Kenya has be­come “ban­dit econ­omy”.

In­ci­den­tally, the Na­tional Assem­bly has from 2013 been steadily vest­ing the Ex­ec­u­tive with pow­ers that were in­ten­tion­ally domi­ciled else­where by the Con­sti­tu­tion for ob­vi­ous rea­sons. Th­ese changes touch on or­gans such as the NLC, JSC, EACC, NPC and NPSC with re­gard to pub­lic land man­age­ment, ap­point­ment of the CJ and DCJ, the fight against cor­rup­tion and polic­ing, thereby com­pro­mis­ing the equa­nim­ity and in­de­pen­dence of the re­spec­tive in­sti­tu­tions.

Dis­puted elec­tions

Which begs the ques­tion, what if the next gen­eral elec­tions are se­ri­ously dis­puted? Which in­sti­tu­tions will we look to im­par­tially and pro­fes­sion­ally ad­ju­di­cate the im­passe? It is note­wor­thy that what led to the 2007-8 PEV was the over­whelm­ing feel­ing that the now de­funct Elec­toral Com­mis­sion was com­pro­mised and the per­cep­tion that the courts were al­ready bought and paid for.

As we ap­proach the next elec­tions, the peo­ple of Kenya have to re­flect on the heavy price of let­ting per­sons or in­sti­tu­tions that are per­ceived to be com­pro­mised carry out very sen­si­tive func­tions at very sen­si­tive times… func­tions that have his­tor­i­cally proven to be deadly.^

Writer is an Ad­vo­cate of the High Court of Kenya and Se­nior Pro­grammes Of­fi­cer – Civic Space AR­TI­CLE 19 East­ern Africa

IEBC chair Is­sack Has­san.

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