Lack of a single voter register is becoming a recipe for chaos
Independent Electoral and Boundaries Commission (IEBC) as mandated by the Constitution must deliver transparent, credible, free and fair elections on August 8, 2017. It is the only hope to guarantee durable peace and political stability of the country. Elections without integrity undermine public trust in democracy, pushing people towards undemocratic and radical alternatives to effect change.
During the2013 general elections, the voters register was seriously flawed and undermined the credibility of the entire election process. Because of these flawed voters' register, the IEBC has been unable to formally publish the final results of the 2013 general elections to date. It is our observation that the ongoing voter register verification by KPMG is shrouded in secrecy and lacking in political parties or the general public participation. In the absence of a sole declared and published register to date, one is left wondering which register is being audited by the contracted company. The registration of voters and the transparency of the register are once more the subject of controversy.
In 2007, the country slipped into near precipice due to: 1. Elections were run by a compromised and easy to manipulate electoral body (defunct ECK) and 2. The electoral commission lacked a credible verifiable and transparent voters’ register. These two issues must not be taken lightly.
The buck stops with IEBC on electoral candidates’ integrity
All information pertinent to the electoral integrity of candidates must be published and publicized for the purpose of enabling a voter make an informed decision.
In 2012, International Center for Policy and Conflict (ICPC) filed a case in High Court challenging the suitability of candidates with integrity issues from running for state and public office. ICPC had gone to court seeking interpretation of Chapter Six of the Constitution on Leadership and Integrity.
We are today reiterating our call to IEBC to enforce the tight provisions of Chapter Six on matters of election and election candidates. This is a duty the IEBC must neither take lightly nor shy away from.
It must be recalled that the Preamble to the Constitution recognizes the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.
The Constitution does not bar anyone from running for political office. However it sets out clear suitability criteria of who can occupy a state office. Elected representatives on oath discharge the Constitutional duties. Therefore, they must under oath at the time of filing of nomination papers declare their assets and their past record publicly. The citizens have a right to know that elected representatives discharge their duties as per the Constitution and the law and are not amassing wealth/assets or covering their past tracks.
The Nancy Baraza Judicial Tribunal addressed and resolved Chapter 6 application on integrity. The tribunal made a distinction between presumption of innocence as articulated in the administration of criminal justice and integrity standards expected of public/state officers. The standard of proof touching on the conduct and integrity of public officers is “neither that of criminal law, that is beyond reasonable doubt nor that in civil cases, which is on a balance of probability”. The popularity of an election candidate DOES NOT OVERRIDE THE IMPORTANCE OF INTEGRITY REQUIREMENTS on him or her to hold state office. For instance Jubilee nominee for Kiambu County Hon. Ferdinand Waititu was declared unfit to hold public office.
Although every possible candidate, regardless of the office he/she aspires to run, has an individual right to contest, such a right can only be exercised if it does not directly compromise the national values and public rights outlined above. Unfortunately, focus has so far been unduly given to eligibility questions at the presidential level. In our view as ICPC, offices at county and legislative levels are perhaps even more important. We thus urge IEBC to go the extra mile and rigorously vet all candidates at all levels as part of nominations for the August 8 elections.
While the Ombudsman’s move is a good beginning, we urge IEBC to take a more central role and urgently coordinate other state agencies such as the Police, CID, NSIS, the Ethics and Anti-Corruption Commission and the Office of the DPP to undertake thorough vetting and background examination of candidates and file with it sufficient reports.
ICPC certainly recognizes that this is likely an onerous task considering the now crowded electoral timetable. However, as a constitutional body, IEBC will only be holding mock elections if it fails to undertake proper inquiry and background check of all candidates from county to national level. Any conduct of democratic elections anticipated to be within the remit of Article 88 that creates the IEBC cannot be fulfilled unless the candidates presented to the people have met requisite threshold on personal integrity. They must therefore neither have criminal background nor history of violence and involvement in corruption.
Indeed, we wish to remind Kenyans that under the new dispensation, it is no longer the case that any office or person enjoys immunity from inquiry into their backgrounds and prosecution. Article 145 (1) (b) of the Constitution limits immunity even for the President unlike in the former Constitution, and therefore it would be a total dereliction of public duty were IEBC to ignore its rightful duty to vet candidates at all levels. In the case of the presidency, such an oversight can only expose the country to sham elections which we cannot afford.
Voters will only be legitimately deciding through democratic elections on August 8 if candidates have been cleared having met personal integrity, competence and suitability to hold public office. Any other procedure will be deemed fatally defective and to be in violation of the spirit and letter of the Constitution. It is, therefore, constitutionally untenable, null and void.
Finally, ICPC wishes to disabuse the public of peddled notion that vetting candidates would be an encroachment on their individual rights. That is a populist argument that has been incorrectly furthered during public rallies. It is premised on the argument for ‘presumption of innocence’, which is not the issue that Chapter Six seeks to address. By requiring Article 73 that public officials be selected “on the basis of personal integrity, competence, and suitability”, the threshold is not criminality but that where substantial issues have been raised against a person then that ought to be thoroughly inquired upon before such persons ascend to office. It is therefore a question of finding a balance between public right that meets our national values and legitimate temporary limitation on individual rights.