African Press International (API)

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All Is Not Well With Poll Arrangements

Posted by African Press International on October 27, 2012

Friday, October 26, 2012 – 00:00 — BY DAVID MAKALI

Keen followers of the countdown to the next general election have a reason to worry. This country is staring at another electoral disaster and everything must now switch from urgent to crisis mode if a credible poll is to be held on March 4.

And this is not just about the delay in the arrival of the Biometric Voter Registration kit and the implications of the consequent late registration of voters.

That can be dealt with by emergency measures, including declaring a three-day national work stoppage to enable all eligible voters to register en masse.

But enormous groundwork is required to turn out the vote, recruit and train the personnel to manage the multi-layered electoral exercise, which is a huge task. We are staring at potentially the most chaotic and tense election since independence.

The Independent Electoral and Boundaries Commission (IEBC), which was initially to blame for the botched procurement of the kit, has tactically absolved itself from responsibility for the current impasse.

During the crisis stakeholders meeting on Wednesday at the Prime Minister’s office to iron out the process, the government attempted to calm the nervous IEBC amid accusations of ineptitude and attempts to sabotage the elections. But many questions remain unanswered.

Have the bureaucratic cobwebs, legal hitches and vested interests that encumber the IEBC’s work been completely thwarted?  Why have the key officials required to superintend over a smooth election — the chief accounting officer and party the registrar of political parties — not been recruited?

Given that the two coalition principals have such vested interests – one with an eye to influence his succession and the other firmly in the race — can they be trusted to smooth the way to this election as they have repeatedly stated?

On Wednesday, the IEBC expressed “cautious” optimism about the future.  It kicked the ball from its court to the executive, which promised to ensure the money is paid and the kit supplied by next week for the IEBC to manage the tenuous deadlines.

So many election timelines have been adjusted to accommodate the logistical obstacles in the registration of voters and the weird migration habits of the politicians. But the pressure cooker situation in the country can easily snap with one misstep.

Even more worrisome is the inability of our leadership to agree on a formula for achieving the divisive one-third gender requirement for all elective positions stipulated in the constitution.

After much back and forth, the political class has declared itself incompetent and hopeless. The time for a constitutional amendment –90 days after the First Reading in the House – has lapsed and yet the current Parliament will stand dissolved in the next 80 days. No bill has been published for public input, or even tabled in Parliament as required by Article 256.

The executive is now seeking the Supreme Court’s interpretation of the Constitution, in a clear effort to browbeat the public and facilitate another breach, which could further complicate the election crisis.

If the composition of the next Parliament does not meet the one-third minimum of either gender, it will be invalid. The IEBC will not gazette it and hence it will not transact any business.

Whereas the constitution provides a solution for meeting the benchmark of a popularly elected president by 50%+1 of the votes cast or a simple majority in the event of a run-off, there is no similar safety valve for a hung parliament.

The criteria for achieving this threshold was left to subsidiary legislation, which has now become a crisis.  Shall the election be nullified and seats declared vacant pursuant to Article 103 and another election called? Or shall the inability to comply with the constitution invalidate the election (Article 105)?

The paralysis consequential to this crisis is serious. First, it means that the Executive, too, will not be fully constituted because Parliament must approve the Cabinet that the President may appoint.

Thus, although the preparations for the elections are far behind schedule and goal posts are being moved to accommodate political gerrymandering, the real crisis lies in the compliance with the constitution.

The main assignment for this Parliament when it resumes in November is to clear the le remaining legal obstacles by legislating means by which the one-third rule will be achieved in elective positions.

It may also need to ponder whether vesting executive authority in one gender — a president and deputy of the same gender – does not offend the constitution. Why is it good for the judiciary and not the executive?

 

———– The Star of Kenya ———-

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