BBI report falls short on the election question: lawyers

“Never lose sight of an antelope for a dashing squirrel” is how constitutional lawyer Patrick Lumumba famously captured the chaotic events of the Bomas Constitutional Conference in 2005.

And there are emerging concerns that the political class may be losing sight of the antelope, which is the electoral process.

While the Building Bridges Initiative (BBI) is geared toward enhancing national cohesion by curing tribal and political hostilities, there are fears focus may be shifting away from the key problem area — elections.

Noting that the BBI was spearheaded by President Uhuru Kenyatta and Orange Democratic Movement (ODM) leader Raila Odinga out of realisation that “Kenyans engage in bloody fights every election year”, human rights lawyer Harun Ndubi warns the initiative could collapse if it fails to focus on and fix the elections question.

“The perennial chaos is largely ignited by electoral injustice, courtesy of alleged poll fraud and the winner-takes-it-all arrangement. The BBI report has correctly diagnosed this problem but offered a rather weak prescription, which the political class are happy to exploit,” opines Ndubi.

NEW MANDATE

When he warned against losing sight of the antelope, Prof Lumumba, then-Constitution of Kenya Review Commission (CKRC) secretary, was addressing politicians with a penchant for short-lived interests.

“Then, I sought to appeal to politicians not to lose sight of the bigger picture, which is the national good rather than their short-term goals and narrow personal interests. The situation is not any different even now and I am afraid the political class may soon be racing after the squirrel,” Prof Lumumba told Sunday Nation.

The issues of divisive politics, ethnic antagonism and competition are covered in chapters 4 and 5 of the BBI report, which acknowledges that “our politics has taken on the aspect of a conflict that every five years threatens to destroy lives, and even puts the continuity of our country at risk.

It allows those we charge with responsibility, from the high offices of State, to our schools, churches, and mosques, to manifest the worst in themselves and to degrade our trust even further”.

While acknowledging that the high stakes of the winner-take-all system have made the presidential poll a do-or-die affair, “which leads to extreme scepticism and mistrust of the electoral process”, the report proposes the creation of the position of Prime Minister and Leader of Official Opposition, among others as a power-sharing avenue.

The report also recommends a mechanism that gives leaders of parliamentary political parties a role in the recruitment of commissioners of the Independent Electoral and Boundaries Commission (IEBC).

ELECTORAL JUSTICE

ODM, the main opposition outfit, seems fairly happy with the proposed electoral changes.

“We have all along pushed for electoral justice and this explains why we have repeatedly found ourselves on the streets protesting. We are glad that Kenyans, as captured in the BBI report, now see the need of reorganising the electoral body by allowing parties to nominate its commissioners,” says the party’s chairman John Mbadi.

The party official, who is also the National Assembly’s Minority Leader, believes the move will boost trust in IEBC and encourage transparency in the electoral process.

The only challenge now, according to him, is for parties to identify trusted individuals who cannot succumb to manipulation.

But terming the proposals as “merely cosmetic”, Gabriel Mukele, who served as vice chairman of the defunct Electoral Commission of Kenya (ECK), says kicking out commissioners cannot guarantee electoral justice.

“Experience, the world over, is valuable and the best teacher. The IEBC chairman (Wafula) Chebukati may, for instance, have had a few slip ups in the last polls but he is bound to perform better in 2022 because 2017 was a learning experience. We similarly improved gradually during our time,” says Mukele.

TENURE

The former ECK vice chairman scoffs at the idea of IEBC staff serving for a three-year contract renewable only once.

“There can never be a worse recipe for electoral chaos than this. The temptation to receive bribes or manipulate results for other related gains is higher among those in employment for a limited period, since they will soon be jobless,” he says.

Mr Ndubi, who unsuccessfully filed a petition against the election of President Kenyatta in the 2017 repeat presidential poll, argues that creation of additional positions in government and for the opposition, “are not enough to cure the country’s political problem, which stems from electoral injustice”.

“We are in this current mess not because of lack of enough positions in government to be shared out but rather lack of the principle of ‘my vote counts’. All these BBI efforts will accordingly come to naught if the issue of electoral justice is not addressed firmly,” says the lawyer.

Prof Lumumba regrets that “electoral deceit has become a national culture, which can hardly be fixed even if the angels were to preside over the poll exercise”.

The former Kenya Anti-Corruption Commission (KACC) director says that only Kenyans of integrity can fix the problem and not systems, which are prone to abuse and manipulation.

COURT ABUSE

Deputy President William Ruto has repeatedly attributed the country’s electoral woes to one man — Mr Odinga — whom he accuses of “not willingly accepting loss at the ballot”.

Citing the 2013 and 2017 cases, the former prime minister, however, maintains he has been using legal means to seek redress in the courts of the land.

Even as Kenyans look forward to a lasting solution to the electoral problem from BBI, this is not the first document to attempt to address the problem: there were the CKRC, Bomas Draft and Kilifi Draft reports ahead of the 2005 plebiscite.

Then came the Kriegler Commission Report following the 2007/8 post-election violence, triggered by the highly-disputed presidential poll.

While handing over the team’s recommendation, retired South African Judge Johann Kriegler warned that poll chaos and violence will keep recurring unless the electoral question was fixed.

Tanzania’s Foreign Affairs Minister Palamagamba Kabudi echoed similar sentiments during the official launch of the BBI report.

“To me, this is the speaker who spoke to the heart of Kenyans. But the big question is — did his message truly sink home? I doubt, considering our collective sense of memory loss,” regrets Prof Lumumba.