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We will lock you out, IEBC chairman Issack Hassan warns CORD over intimidation

Posted by African Press International on May 8, 2016

By Nzau Musau, The standard news Kenya.
Updated Sunday, May 8th 2016 at 00:00 GMT +3

Besieged electoral chief Issack Hassan is now threatening to lock out CORD leaders from the 2017 General Election if they persist in intimidating the commission.

And to underscore the Independent Electoral and Boundaries Commission’s resolve, Hassan stated unequivocally: “We will bar them from participating in the election if they persist on intimidating the commission against the law. You can quote me on that. We will bar them,” he said.

In an exclusive interview with The Standard on Sunday, Hassan said CORD leaders must comply with the law if they hope to participate in next year’s elections.

Hassan also dismissed CORD’s threats to boycott the election if he does not resign. He said participation in an election is voluntary and that CORD was free to keep off if it so wished.

He vowed to go down fighting and “to hang on to the very end” against the swell of calls to resign by political leaders, a section of the clergy and other independent groups and individuals.

Asked whether he wasn’t underestimating the ramifications of his statement, he responded: “We are neither stupid nor naïve. We know how powerful and ruthless the political class can get if they zero in on you. If they outsmart us within the confines of the law, we will honourably walk out with our heads high,” he said.

However, governance experts, a senior counsel and a former member of the disbanded Electoral Commission of Kenya (ECK) have warned the IEBC against underestimating the magnitude of the crisis building up.

Alfred Ndambiri, a former commissioner with the defunct ECK, said the IEBC was playing into the hands of the political class and may cave in sooner rather than later.

“We went through all this in 2008 when the political class, just like in the current scenario, based its campaign against us on allegation of rigging or misconducting the previous election. To the extent that it is a mass action approach to it, it is difficult for any commission no matter how strong, how independent and how competent, to survive,” he said.

Ndambiri was among the last batch of commissioners appointed in 2007 by former President Mwai Kibaki in defiance of the 1997 gentleman’s agreement, the Inter-Party Parliamentary Group (IPPG). In the arrangement, political parties nominated ECK commissioners through an agreed quota system.

“It’s good for them to stand their ground since they are not in office illegally, the allegations are not properly grounded in law and do not appear to be supported by the entire political class. However, from our experience, I know that it’s unlikely that you can survive a political onslaught when you are relying purely on the law,” Ndambiri said.

Political games

In the interview, Hassan said the commission was satisfied with the guarantees provided by the law. Ndambiri, however, thinks the current onslaught against the IEBC has got nothing to do with the law and as long as the commission approaches the problem from that perspective, it will fall.

“I wish they knew. It’s not about the evidence or the process of removal. It’s all about creating a certain perception that they cannot possibly be independent in the conduct of the election. They are certainly placed in a very difficult position and the more they react to the political games, the more they dig the very hole upon which they will fall.”

This is the pressure IEBC finds itself with

CORD leader Raila Odinga has repeatedly stated that the commission cannot conduct credible elections as it is currently constituted, and has said his coalition will not contest in elections supervised by the current commissioners.

Hassan said the commissioners will not cave in. He said succumbing to pressure will not only create a bad precedent but will also turn the electoral commission into a graveyard of careers.

The IEBC boss has been supported by other politicians, especially those within the Jubilee fold, who have asked CORD to use constitutional means if they want to remove the commission.

President Uhuru Kenyatta has publicly stated that this was the only way in which commissioners can be removed. Chapter 16 of the Constitution states that commissioners can only be removed from office for serious violation of the Constitution, including a contravention of Chapter Six on leadership and integrity. Incompetence or bankruptcy can also be grounds for removal.

Commissioners can be removed if they are accused of gross misconduct or for physical or mental incapacity to perform the functions of office. The National Assembly can be petitioned after it is presented with facts warranting the removal of any of the IEBC’s nine commissioner.

The National Assembly can then send this petition to the President who can then form a tribunal to hear the petition. The tribunal’s recommendations to the President are binding and must be acted on within 30 days.

Matter of time

Senate Deputy Majority Leader Senator Kipchumba Murkomen said the matter must be discussed dispassionately. “We are not opposed to CORD raising concerns about IEBC. We are opposed to ‘mobocracy’ and flagrant violation of our Constitution,” said the Elgeyo-Marakwet Senator.

“The rule of law demands that we follow the Constitution whether or not it favours our short term interests.”

The Leader of Majority in the National Assembly, Aden Duale, concurs.

“The IEBC is one of our independent institutions whose mandate is firmly anchored in the Constitution. Thus, any dispute arising out of questions touching on its performance should be dealt with, with utmost sobriety and within the law. We can’t just shout disbandment when there is a clearly laid out procedure of handling the issue.”

Governance scholar Karuti Kanyinga said it is only a matter of time before the IEBC resigns. He said the current situation has placed Kenyans in a “very difficult position” in which the self-interest of CORD leaders is playing against the self-interests of IEBC commissioners.

“It’s now a question of who between the IEBC and the CORD politicians will answer the nationalist call and either drop the campaign in the case of CORD or quit the commission in the case of the commissioners. This is a classic case of self-interests competing against each other in the place of national interests,” Prof Kanyinga said.

He said it would be precarious for the country to go into an election when institutions that would legitimize the process do not enjoy high public confidence. He said the police, the IEBC and the Judiciary were all suffering a crisis of confidence yet they are indispensable in an electoral process.

“It’s a ringtone for trouble. My own informed guess is that the commission will fold. The pressure will be too much and they will be singing a different song. It’s wrong for the IEBC to wait for that moment,” Kanyinga said

Senior Counsel and former chairman of Committee of Experts (CoE) Nzamba Kitonga cautioned the IEBC against taking a hard line position. He said the matter of public confidence is beyond the law and required a different approach from the one being taken by the commission.

“I would like to tell the IEBC not to take a hard line stance on this matter. It’s not even good for them to want to do an election in which a substantial number of players have publicly said they do not trust you. We all know what happened in 2007 and none of us wants to go back there,” Dr Kitonga said.

Ballooning crisis

According to the Senior Counsel, the ruling Jubilee administration should not take the matter lightly as “there is no use of going into an election where one large group is disgruntled.”

“The correct legal position is for CORD to petition Parliament on the IEBC matter. But as I understand it, there is an additional problem of confidence crisis. The only way out is to work out a negotiated settlement and encourage the commissioners to resign,” Kitonga said.

His sentiments were echoed by his former colleague at CoE Bobby Mkangi, who called for a “broad-based formal approach” to sorting what he says is a ballooning crisis.

According to Mr Mkangi, if the crisis is allowed to fester, it might be too late to substantively address it ahead of the next general election.

“This is not the sort of situation where you wait and hope that the protagonists will not gain traction in their campaign. Each day we are drawing closer to the election and the higher the risk grows. The grand-standing, the rhetoric and the sloganeering will not help anybody,” he added


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