On 23 January 2023, President William Ruto performed, for the first time, one of the key constitutional responsibilities of a Kenyan president – assenting bills from Parliament into law. He did this when he signed the Independent Elections and Boundaries Commission Act, (Amendment) Bill 2022.
Introduced to the National Assembly (NA) on 2 November 2022 by Kimani Ichung’wah MP, Leader of the Majority Party (Kenya Kwanza (KK) Coalition), the bill aimed at amending the “First Schedule to the Independent Electoral and Boundaries Commission [Act] No. 9 of 2011 to change the composition of the Selection Panel that oversees the filling of the vacant positions in the Commission.”
The bill’s Memorandum of Objects proceeded to state that “The proposal seeks to reduce the current allocation of the Parliamentary Service Commission which nominates four out of the seven members of the Panel. This would be achieved by allowing “the Political Parties Liaison Committee established under section 38 of the Political Parties Act No. 11 of 2011 and the Public Service Commission to each nominate one member of the Panel.”
Notably, this change reverberated majorly in the current party and parliamentary power play and set the stage for the 2027 elections.
In addition to the victories that President Ruto’s KK Coalition has so far secured in the 13th Parliament, prominently being bagging speakerships to both the NA and the Senate, declaration that KK forms the Majority, and approval of presidential nominees as Cabinet Secretaries (CS) and Principal Secretaries (PS), the passage of this amendment confirmed its numerical hence tyrannical fortitude in Parliament.
However, of more significance is the signal that this enactment sends – that presciently KK has the upper hand in managing future general elections, writ large the 2027 edition. This is because of the role that the Selection Panel (SP) plays – overseeing and controlling the process of recruiting new commissioners of the IEBC. The SP invites Kenyans to apply, shortlists, interview and nominates for presidential appointment suitable men and women to serve in this important institution.
Akin to a kernel in computer programming, the SP controls and sets in motion the quality of elections because it is the quality of recruitment (process and nominees) that determines the veracity of elections. Consequently, the SP is the doormat at the entrance of effective management of free and fair elections in Kenya. To this extent, the SP invariably invites intrigue and attention, from the political class mostly, because it imagines this to be the first step and move to victory in the electoral chess board.
This is the reason why since inception, the politicos have ensured that the composition of the SP is a reflection of the main political interests personified through party formations and divisions.
Constituted in 2011, the first SP which recruited the inaugural IEBC commissioners after the promulgation of the Constitution of Kenya 2010 comprised amongst others members nominated by the President and the Prime Minister. This was during the era of the ‘nusu mkate’ (half loaf) coalition government (2008-2013), which was formed after the 2007/8 post elections violence (PEV).
The then IEBC Act prescribed under section 5 that of the seven panellists, the President and Prime Minister would each nominate two persons, a man and a woman. The other members represented the Judicial Service Commission (JSC), the then Kenya Anti-Corruption Advisory Board, and the “Association of Professional Societies in East Africa.” The Public Service Commission (PSC) provided the SP’s secretariat. The SP then elected its chairperson and deputy and determined its own procedures.
The crucial thing to note was that upon expiry of the coalition government and the Prime Minister’s position becoming redundant, the president would nominate the two panellists slated for the PM. In other words, the president would have an upper hand because s/he would nominate four members of the panel. This was one of the reasons why Parliament changed this formulation in 2016, pursuant to a recommendation made by the parliamentary Joint Select Committee to Address Reforms to the IEBC.
The bi-partisan 2016 SP was thus constituted after the then Coalition for Reforms and Democracy (CORD), led by former PM Raila Odinga, bore political pressure on Uhuru Kenyatta’s government, through street demonstrations and other tactics, calling for electoral reforms, prominently being the expulsion of the then commissioners, led by its chairperson Ahmed Issack Hassan. As a result, a number of proposals, including one on the composition of the SP were made.
As mentioned above, crucial to the push for amending this provision contained in the First Schedule of the IEBC Act, was that in the event of a vacancy, the president stood to nominate four persons. It provided that “After the first elections under the Constitution, the persons to be nominated under sub-paragraph (1 )(b) [PM nominees] shall be nominated by the President.”
Considering the hyper-high trust deficit prevailing amongst politicians, parties and state organs at that time, and cognisant of the nature of an institution such as the IEBC, in which political justice must not only be done but also displayed, the presidency, hence its political party/coalition, would ostensibly call the shots. So it was that the composition of the SP was changed to allow the Parliamentary Service Commission (Parl.SC) to nominate four members, two men and two women, each pair picked by the Majority and Minority divisions in Parliament.
Through this veil of institutional impartiality, the then Jubilee Alliance coalition (which would morph into the Jubilee Alliance Party (JAP)) and CORD (which would become the National Super Alliance (NASA)) would nominate two selectors each. It was imagined by the politicos that having commissioners wearing their team’s jerseys would protect their interests.
Other changes made included removing the JSC, and the Association of Professional Societies in East Africa and replacing them with the Law Society of Kenya (LSK) (one slot) and religious institutions (two slots). Its secretariat was also moved from the PSC to the Parliamentary Service Commission.
This shift invariably sent the institution and process to the clutches of Parliament, hence politicians. Whereas their interests now had sentries, the independence of the commissioners hence commission, was compromised. The LSK was included so as to theoretically protect public interest, which is one of its guiding principles as per the Law Society of Kenya Act 2014. The inclusion of men and women of the cloth was meant to imbue public trust and confidence. Taking into consideration that the LSK tends to be seen as politically partial, the representatives of religious institutions were supposed to infuse the halo of impartiality and objectivity.
So it was that the 2016 version of the SP would recruit the commissioners that oversaw the 2017 and 2022 general elections.
The trigger to the current changes may have come from the fact that four (now notoriously known as the Cherera Four) of the commissioners (three have resigned and one facing a tribunal) who oversaw the 2022 elections were nominated by a SP and Parl.SC that were dominated by the antecedents of ‘Handshake politics’, meaning that it was retired President Uhuru Kenyatta (Jubilee sans William Ruto) and former PM Raila Odinga who ultimately determined the four new members who replaced four commissioners who resigned in 2018 due to divisions in the institution caused by vested political interests.
Instead of engendering independence, the Parl.SC algorithm was instead occasioning institutional gridlock. It is perhaps this development, which meant that William Ruto, who eventually defeated Raila Odinga during the 2022 elections, did have little if any say in influencing the nomination commissioners ‘friendly’ to his course, and coincidentally that it was the four that were picked ‘in his absentia’ that eventually disowned and walked away from announcing results that were in his favour.
Recalling that this became one of KK’s legislative priorities, coming off the heels of a hotly contested presidential poll, and anticipating the recruitment of new commissioners (Chairman Chebukati’s, Prof. Abdi Guliye’s, and Boya Molu’s terms would expire on 17 January 2023, and rumours of petitions for removal of the Cherera Four in the mills), the President’s side was not going to endure another process overseen by a SP whose theatre of operations was the Parl.SC. Its institutional memory and influence had to be neutralised in a manner which the KK coalition felt in control of and comfortable with.
This was done by confiscating two slots from the Parl.SC and allocating them to the Political Parties Liaison Committee (PPLC) and the Public Service Commission. Inasmuch as this seems to democratise by increasing the number of institutions nominating IEBC commissioners therefore adulterating the influence that Parliament hence political parties/coalitions had, the institution and process still remains perceptibly state, hence politically controlled.
The PPLC was recommended by the Independent Review Commission on the General Elections held in December 2007 (Kriegler Commission), to provide a conferencing platform for all registered political parties, IEBC, and the Registrar of Political Parties. As inclusive, deliberative, and impartial as it may seem, the console of the clutches of contemporary political power-games animated through the ‘might is right’ modus operandi of political parties and coalitions still reside. At the end of the day, its nominee to the SP must get a blessing from the political party or coalition holding sway.
On the other hand, and although an independent commission by dint of the Constitution, the Public Service Commission perceptibly remains state, and more so executive-controlled. This is because matters public service generally and the recruitment of its chairperson and eight commissioners is controlled by the presidency (select panel is singularly recruited by the president and the Office of the Secretary to the Cabinet provides its ways and means). Ultimately, and with mistrust remaining the elephant in the room, it is possible to poke holes in all institutions and formulations. Unfortunately, when it comes to the SP, there is no perfect formulation.
Going forward, it will therefore remain the onus of the men and women nominated to serve in the SP, to rise higher than the real and perceived auras that may influence their decisions and make resolutions that will avail commissioners who shall deliver free and fair elections in Kenya.
The new commissioners must regardless of prior affiliations, adorn the constitutional armour and serve impartially and professionally. Individual and personal agency whose conscience should be dictated by the Constitution should always prevail. Politicians, whether in government or opposition should also steer clear of attempts at controlling independent institutions. Their rhetoric should also engender public confidence and trust.
In the future, the SP can be democratised further by adding more institutions that represent better the complexion of Kenya.
Since trust and manipulation are the mischiefs to overcome, it is harder to control a larger number of representatives. There is wisdom in bringing back the JSC and the Association of Professional Societies in East Africa and providing that the latter should nominate a man and a woman. The SP should also display representation from the youth and Persons Living with a Disability (PWD). Because elections are political, its major interlocutors – politicians and political parties/coalitions should be involved but not have the upper hand in controlling and seemingly determining elections whose primary player is Wanjiku the voter.
Paraphrasing Stalin, it is those who vote that count and not politicians or political parties!