NEGOTIATING ELECTORAL JUSTICE IN KENYA THROUGH SYSTEMIC, SYSTEMATIC, LEGISLATIVE AND INSTITUTIONAL REFORMS FOR THE COMMON GOOD

30 Jul

By Javas Bigambo
(This article was originally published by the author in ELOG’s DARUBINI YA UCHAGUZI BULLETIN, No 4 June-August Issue).

Since Kenya’s founding upon Independence, the earnest quest for electoral integrity and electoral justice processes have incessantly remained elusive, though encouraging steps have periodically been made.

It is immutable trite law that electoral processes are the vital pillars in establishing the Hobbesian Social Contract between political leaders and citizens.

The primacy of that contractual process is guided by the fundamentals of unadulterated franchise as provided for and preserved by facilitative legislation that guides the election process, so as to establish an esteemed democracy where the majority have their way.

Javas Bigambo writes and speaks extensively on matters of Governance; Devolution; Elections; Law, and Communication.

An incisive look at the pre-election, election and post-election challenges that have dogged Kenya since the advent of multiparty democracy point to a stubborn refusal by powerful politicians from respecting the dictates of the rule of law.

It remains disturbing that despite major constitutional reforms that heralded the Constitution of Kenya 2010, which brought forth critical institutional reforms in the electoral process tethered to progressive election legislation, it is worrying that avoidable challenges abound. Such challenges relate to delayed voter or staggered voter registration processes due to insufficient biometric voter registration equipment; corruptible procurement processes of election materials; disputes and suspicions over printing of ballot papers; treating of voters during campaigns; lack of capacity in monitoring and prosecuting individuals and politicians engaging in election offenses; election-related violence; extra-judicial executions during election season; political threats aimed at intimidating security and judicial officers among a galaxy of other challenges.

These challenges spiral into disputed election outcomes; testing the limits of nationhood and at times fragmenting civic cultures that are otherwise supposed to be bolstered; and diminishing the perceptive capacity of the Independent Electoral and Boundaries Commission (IEBC) to conduct a free, verifiable, independent and fair election.

The Youth Factor in Elections
If Kenya’s democratic normative frameworks are intended to be enforced and realized as progressive and productive, the place of youth and women in the body politic has to be re-negotiated.

The youth can no longer be spectators or cheerful bystanders whose only significance is to be feted as town-criers, carriers of leaves and marginal composers of songs or seat-fillers within the political framework.

Beyond leadership roles that have to be taken up in political parties, campaign management and institutional management within government, the young people in Kenya really have to re-imagine their roles in the political process, and re-think their place at the frontiers of electoral processes, governance an political leadership.

It is no longer worthwhile to have young people wasted or to waste themselves as dis-engaged agitators who count for nothing.

Rising above the Challenges
What is undeniably needed is the urgency of constitutional commissions to claim their real independence which is preserved by the Constitution. The the IEBC and the Kenya National Commission on Human Rights (KNCHR) must of necessity be sufficiently funded.

Commissioners to these bodies should be competitively recruited, and political parties should respectfully stop interfering with the discharge of duties of the IEBC.

It would serve the ends of justice to have serious investigations of election offenses conducted during and after elections.

Political parties are the cog in the wheel of these challenges and solutions. Beyond internal mechanisms established by political parties to address such challenges, there is need for Kenya to put in place a body that monitors and reprimands political parties that cast a blind eye on election offenses or malpractices by their members and supporters.

All criminal offenses related to elections have to be tackled decisively and seriously within the provisions of the law.

The IEBC could also establish an electoral justice database that documents all persons investigated of election offenses, and those found culpable prosecuted and barred from presenting themselves to the electorate for election in two subsequent elections.

It is necessary to re-think our legislation, policy and monitoring of campaign financing and expenditure by each politician and each political party, with proper reporting within specified times. As it is presently, the regulations on campaign financing presently in place are anything but useful.

Kenya must work to have in place an election management system that is not open to manipulation.

To the extent that there will be incessant systematic and systemic failure to extirpate electoral injustice, there will be perpetual worthless casuistry of electoral processes by the government of the day or subsequent ones that will germinate from such injustices, and the appropriateness of a social contract between the people and the political establishment will invariably be dishonoured.

The writer is a Governance and Communication Expert at Interthoughts Consulting, and the Chair of the Board of Directors at Youth Agenda.
2018

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