Confustrated by the IEBC Conundrum

Excerpts of an enlightening facebook conversation regarding the current Kenyan IEBC issue.

Kyama Mugambi I’m watching this citizen morning show, someone please help me: what is the problem? Is it the IEBC commissioners themselves, some, all? Or the IEBC law? Or the provisions for IEBC in the constitution? If we have a constitution and law, is there a constitutional provision for extra-constitutional institutions to solve constitutional inconsistencies? Do we now need a referendum for this? Why weren’t these issues anticipated when this constitution was written and promulgated? ‪#‎confustrated‬

Njonjo Mue Kyama, the IEBC performed poorly in the 2013 elections. Some put it down to incompetence, some to corruption in procurement, some to partisanship. Whatever the case, the technology acquired at the cost of billions of shillings to the taxpayer failed cataclysmically forcing us to revert to the manual system that was so discredited following the 2007 elections. The IEBC did not have a voter register and their figures kept changing with thousands of new voters being added after the official registration period was supposed to have ended on 18th December 2012. IEBC never explained how on earth they could agree to share a server with one of the competitors at the election, TNA. All these issues and more were raised during the election petition but the Supreme Court treated them very casually. After the election, IEBC took a defensive position and did not conduct a proper audit of the election to ensure that these issues were addressed. As all this was going on, news came in of the Chickengate scandal implicating the Chair and some commissioners. CORD has also not forgotten the Chair declaring on oath that Raila Odinga is a sore loser who believes that no election can ever be fair if he is not declared winner. This shows inherent bias. The recent and ongoing clamour for reform and removal of the commissioners is therefore a case of chickens coming home to roost (pardon the pun).

As for the process of removal, CORD is arguing that they cannot expect justice in a parliament a majority of whose membership is beholden to their competitors who were put in power by the very body whose legitimacy is in question.

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Of course the Constitution should be respected, but this country and others have known extraordinary moments when political consensus outside formal structures is necessary first after which what is agreed is taken to Parliament for approval. If we always insisted on ‘following the Constitution’, apartheid in South Africa would never have ended, neither would post election violence in 2007.

 

Kamotho Waiganjo Kyama Mugambi the IEBC is the easiest matter to solve both legally and politically. Actually if one looks at the changes proposed by JLA Com the bulk of these issues are included even some that deal with the broader Electoral reforms that target the entire infrastructure of elections. These latter are trickier but with bipartisan support can be carried out. Carrying out these reforms is not impossible. There are avenues in the law for this. One can also get political consensus on most of the critical issues. So that’s not what dialogue outside parliament is about. The elephant in the room are the “outstanding issues”, the ones that were not resolved (or which were conceded to for purposes of moving forward) in Naivasha during the writing of the COK that are trickier because most are political and very contested. These include the Structure of government, nature of devolution etc. These in my view are the unspoken issues that the current agitation is about, not IEBC. I could be wrong.

Kyama Mugambi Thanks this is helpful Njonjo Mue . This is what I am getting from your analysis above 1. The IEBC failed us. [one doesn’t need to be a rocket scientist to figure that out]. There are integrity issues with the commissioners. 2. The justice system failed IEBC, Cord and the nation at large. 3. The constitution should be respected. 4. This is one moment in Kenya, which like Apartheid in South Africa, where the constitution needs to be set aside to solve a national crisis.

Gerald Macharia Not one endowed with political commentary prowess, but what about ordinary people who voted representatives into parliament? Should we ignore that and have a deal cut by a handful of people, some of whom are not representatives of the people, brought to the house for a rubber stamp by a conclave that we elected to represent us, diverse views and all??

Njonjo Mue This is why we are calling for an all inclusive dialogue, not one just involving MPs or CORD and Jubilee. As for the issue of people’s representatives, I take that with a big spoonful of salt. It is usually overstated by people who seek to preserve the status quo. Raila Odinga was voted for by just under half of the people of Kenya. Do those not matter, just because our system is dominated by so-called tyranny of numbers? In any case, we are not discussing the last election, but the next. If we do not hearken to introduce reforms that will make the next election credible, then we shall rue the day we hid behind the fig leaf of ‘the people’s representatives’ instead of taking the hard decisions necessary to preserve our country.

Monica Nzive Why did the agitated push for reforms come this late in the day?! Why are they not coming out clear with all issues for all Kenyans to see? Why do we think that anything agreed upon in a hotel room by a few will be automatically rubber stammped by the so called tyranny of MPs in parliament?

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Kyama Mugambi So in light of the above – 1. Njonjo Mue if there was lack of integrity with the commissioners then it seems to me the law should be followed? The moment we step outside the law then we introduce “extra judicial” remedies to a situation we create precedent which becomes hard to deal with in the future. No? What is to prevent weekly riots in 2018 for more money to Counties, for devolution of the police force and other such issues that are of ‘national’ importance. 2. Is this issue of the same magnitude as the repeal of Section 2A to warrant loss of life and property? As a matter of fact, given this or other constitutional dispensations, is there any issue that is large enough to warrant the kind of destruction and loss of life we have seen recently? 3. Kamotho Waiganjo I like your proposition of bipartisan caucusing to address issues, both legally and politically. a. Is such bipartisanship possible given the political polarity and its proximity to elections? b. Can we trust our legal system to ensure due justice, where it is needed? 4. Why now? Several muted voices raised concerns about the constitution way back when. The answer given was that the ‘small issues’ would be resolved. After all the constitution has a ‘self cleaning’ mechanism to ensure we can modify it as we go along. Those in government and those in opposition were all a part of the process. CORD for example ate half the biscuit/cake/loaf for a significant amount of time to influence outcomes, including promulgation. For some time CORD in the recent parliament also had just under 50% of representation in both houses. How many bills did they propose addressing the current issues? I am also not aware of any bills proposed by Jubilee either to address these or similar issues. What should the kenyan public make of that? Ama hii ni porojo tu 5. Kamotho Waiganjo Njonjo Mue is this a watershed moment? Should we suspend the constitution, take to the streets, agitate for a referendum and solve these issues? Or should we smell a rat and ignore the political machinations for power? Ama we should vote peacefully in 2017 and hope that the elected government and opposition will act together to make a better Kenya, for us, not just for themselves.

Kyama Mugambi So in light of the above – 1. Njonjo Mue if there was lack of integrity with the commissioners then it seems to me the law should be followed? The moment we step outside the law then we introduce “extra judicial” remedies to a situation we create precedent which becomes hard to deal with in the future. No? What is to prevent weekly riots in 2018 for more money to Counties, for devolution of the police force and other such issues that are of ‘national’ importance. 2. Is this issue of the same magnitude as the repeal of Section 2A to warrant loss of life and property? As a matter of fact, given this or other constitutional dispensations, is there any issue that is large enough to warrant the kind of destruction and loss of life we have seen recently? 3. Kamotho Waiganjo I like your proposition of bipartisan caucusing to address issues, both legally and politically. a. Is such bipartisanship possible given the political polarity and its proximity to elections? b. Can we trust our legal system to ensure due justice, where it is needed? 4. Why now? Several muted voices raised concerns about the constitution way back when. The answer given was that the ‘small issues’ would be resolved. After all the constitution has a ‘self cleaning’ mechanism to ensure we can modify it as we go along. Those in government and those in opposition were all a part of the process. CORD for example ate half the biscuit/cake/loaf for a significant amount of time to influence outcomes, including promulgation. For some time CORD in the recent parliament also had just under 50% of representation in both houses. How many bills did they propose addressing the current issues? I am also not aware of any bills proposed by Jubilee either to address these or similar issues. What should the kenyan public make of that? Ama hii ni porojo tu 5. Kamotho Waiganjo Njonjo Mue is this a watershed moment? Should we suspend the constitution, take to the streets, agitate for a referendum and solve these issues? Or should we smell a rat and ignore the political machinations for power? Ama we should vote peacefully in 2017 and hope that the elected government and opposition will act together to make a better Kenya, for us, not just for themselves.

Njonjo Mue Kyama Mugambi, to say this is just about integrity is to over simplify the issue. In any country, the Election Management Body must enjoy the confidence of all , or close to all, of the political players. An electoral commission that is not trusted by parties that represent half the electorate cannot perform the function that it is mandated to perform by the constitution, ie, run a credible election. To ignore calls for reform going into an election is the surest way to ensure that the result will be contested and most probably violently contested.

Njonjo Mue Kyama Mugambi, No one is calling on the Constitution to be ‘set aside’. The call is for a consensus building dialogue whose result can then be taken through the laid down process. I don’t know why people are treating this as such a strange thing. It happens all the time. Ever heard of the Speaker’s Kamkunji that happens informally in the Old Chambers of the House where positions are bi-partisanly agreed and then the parties stick to the agreed positions when it comes to voting a particular measure in the formal proceedings in the House? It’s the same thing. As for people demonstrating to change things that they do not like, that is their constitutional right. We have done it for many years, and MPs sometimes yield to that popular pressure and sometimes they don’t. It should not be presented as if it were treason!

Njonjo Mue And let’s not forget the words of Howard Zinn: “No form of government can be trusted to limit its own ambition, to extend freedom and to wither away…It is therefore up to the citizenry…to engage in permanent combat with the state, short of violent, escalatory revolution, but beyond the gentility of the ballot box, to insure justice, freedom, and well-being, all those values which virtually the entire world has come to believe in.”

Kyama Mugambi 1. Wait a minute Njonjo Mue I am all for calling the government to account. I am on record as stating that Kenya stands to lose if we do not have a formidable force keeping the government of the day in check. That’s the work of the opposition, and in their absence, negligence or incompetence, then any another body should pick that role up. [Civil society and/or
the church, which I am a part of] That said, I believe the whole point of a democracy, which people died for, is for representative government. The person with more votes, wins, the one with less loses. Democracy is by definition a tyranny of numbers. If this is not what will serve us well, then we need to change the constitution to make Kenya a consensus state, where decisions of national [and
county] importance are made not through representative government, or by vote – but through consensus that brings everyone to the table, while managing gender, ethnic, and other demographical considerations. To do that we would need to change the foundational philosophy of democracy as envisaged by the constitution. Ama? 2. Njonjo Mue it is common knowledge that an incumbent government will not willingly cede power in a negotiation of this nature. Especially if they feel they have the electorate’s mandate. This is true of Jubilee. However could it also be true that an opposition without an electoral mandate, will do whatever it can to gain power or political advantage? And that if it can do that through a non-electoral process that would even be better? Its all about power. This is why I want to be careful about this whole demonstrations and ‘negotiations outside parliament’ thing. 3. Njonjo MueKamotho Waiganjo I am curious. In the democracies which we have been trying to emulate with our constitution, what happens when a party/president wins with slightly over half the electorate? For example Bush/Gore election. The US did not modify its governance to accommodate the nearly 50% electorate who voted for Gore/Democrats but lost with a slim under 0.5% margin. However in Kenya, we would like to take apply ourselves to be inclusive of those who lost in a democratic election, which, we’re told, observers said was largely fair. I did not vote for the current government, and I’m critical of some if its actions and policies. I do wonder whether we are entering into a phase of ‘oppositional impunity’ where we develop a culture of distrusting our institutions, when we should be strengthening them. The other thing is – should we be considering “approximate democracy” if you win by 50% plus one, then you do not have a mandate, if your losing opponent had somewhere near 50%.

Njonjo Mue Kyama Mugambi, 1. Our democracy is a representative democracy but it is not a perfect democracy. To ask us to yield to our institutions no matter what is to assume that the institutions themselves are perfect, which they are not. Sometimes strengthening the institutions may call for dismantling them when they fail us and reconstituting them. That is what we did with Kivuitu. And let’s not forget that the selfsame Jubilee that is now so beholden to constitutionalism used their ‘tyranny of numbers’ to send home Mumo Matemu and his entire team at the EACC despite their tenure being guaranteed by teh Constitution.
2. The opposition would not be going to the streets and demanding an extra-parliamentary process if they did not have a critical mass of public support or a legitimate grievance that they feel will not be adequately addressed in Parliament. In 1997, we went to the streets to demand a people-driven constitutional reform process despite Moi telling us that only Parliament was mandated to amend the Constitution. We were teargassed, we were beaten, we were jailed, some of our colleagues died, but we prevailed, at first in winning minimum reforms ahead of the 1997 elections, and eventually in getting a new constitution. The situation is the same now. The opposition is calling for level playing field going into the election and that is their constitutional right.
3. The Bush/Gore analogy is misplaced. First, our constitution provides that if no party gets 50%+1, then we go into a run off. It is the contention of the opposition that no party actually got 50%+1 and that if the election had gone into a second round, the outcome might have been different. Of course the Supreme Court ruled differently, but let’s not assume that the SC itself is unquestionable. Their ruling helped the country come to a finality and move forward, but it did not address all the critical issues. As US Supreme Court Justice Robert H. Jackson once famously stated regarding the Supreme Court, “We are not final because we are infallible, but we are infallible only because we are final.”

If you want to use an American analogy, Bush vs. Gore is not in my view the best to use. The Civil Rights Movement with all their demonstrations and direct action appeals to put pressure on the white establishment to make real the promises of democracy is closer to our situation. We are talking about a group of outsiders knocking on the door of another group that has always controlled power in this country.

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Sammy Mate “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws” Plato

Sammy Mate Whilst I have no confusion over the place of the Law in society, the law does not trump humanity. A good man will have no need to quote and hide behind the law in his arguments.My observation is that, in principle, we have not applied ourselves to voting in “good men and women”. So they will twist the law this way and that way to suit themselves.

Monica Nzive How comes many members of the opposition in parliament have since elections and by elections contacted by the IEBC been holding onto their positions and enjoying taxpayers money as salaries. Shouldn’t they have declined taking up the elected position as it was as a result of a flawed process?!

Wambui Kyama Interesting discussion. Njonjo, what do we do when 49% led by unelected representatives give conditions that the process has to take place out of parliament and whatever is agreed upon outside parliament cannot be amended negatively by parliament. In my view one problem that is quietly simmering is the fact that the opposition does not want to follow the laid down procedures. The Cord leader was heard to say that most of the appointees in IEBC were his appointees but he made a mistake and now they must go home.
Njonjo Matemu was not removed illegally. He resigned after a tribunal was formed at the recommendation of the said parliament to constitute a tribunal to investigate him…

New Word

Confustrate: verb, to confound while causing angst, to cause disappointment and disillusionment by obscuring meaning…

Wambui Kyama By the way I agree that we need to improve on the electoral reform processes. I dont agree that it should be done out of the law and it should also not be done for short term gains…if it is done for jubilee and cord those parties may not be in existent in 2022…

Kamotho Waiganjo We are an amazing people. We don’t trust the constitution. Even though we negotiated it politically. We don’t trust the institutions, even where we negotiated them politically. We don’t trust the law. Even where we negotiated the laws. We don’t trust democracy, it’s not perfect…we trust..,what? I am a believer in protests to push Govt, they are absolutely constitutional…. but surely they are always a last resort? Have we sincerely tried s constitutional processes to resolve our problems and failed. NO! When Govt and the opposition succeed in fully delegitimising the Constitution, where will we go? ….God help us….@ Njonjo Mue who are these outsiders? RAO has been in Govt since 1997. SKM since 1990s, MW the same….the current govt and the opposition are the ultimate insiders

Wambui Kyama Mr. Kamotho you are spot on…in fact I have been wondering whether I can demand certain things based on the fact that I was born under the old dispensation and therefore should be governed by it. I struggle with the fact that I thought the constitution had major flaws and I opposed passing it as it was. However, it was passed and I made my peace with it. In fact I was of the view that we need a referendum to amend it for the long term in order to make it more cohesive, to reduce cost and to make it possible for whoever is in power to govern. However, I am not willing to disregard it because I dont agree with it. How can the very people who were campaigning for it and who labelled people who were saying no be on the forefront of telling us to disregard it. That is the recipe for chaos and anarchy.

David Ewagata We are walking on eggshells. We have pushed justice, integrity and good character to it’s fatal end and now we are seeing red! I don’t think the problem lies with IEBC or jubilee. It’s just that today they hold the long end of the stick. With the sickness of heart that is the Kenyan way of doing government, if Rao was sitting on the other end, I fear nothing would change. Corruption, tribalism, sectionalism, and all other things we are vehemently against would still be.
The change we seek is not a change of officers but a change of heart. And that, not even the queen of constitutions can give to us. The verdict on Cretans in Titus 1:12, “Cretans are always liars, evil brutes, lazy gluttons.” Speaks true of the Kenyan. We need to turn to God and sober up. What we are asking for is a God intervention because this nation is in dire straits and the solutions being vended are mere fallacies. With the glutton tendencies, anyone who holds IEBC office will be subject to bribery, coercion, even threats as in kivuitu’s time.

Elizabeth Dena Kyama Mugambi thank you for sparking off this conversation.Wandia Njoya penned a post recently highlighting the challenges we face as a nation: basically two sides of a divide having a conversation that doesn’t make the remotest sense to either side. It is difficult to believe that the two groups are from the same country and are discussing the same phenomena. The conversation being had here is akin to what she was saying. One half of Kenyans is remembering all that Njonjo has outlined in his first response to this post; this half is refusing to go to an election without all those issues resolved. One half of this nation is confrustrated and wondering what the problem with IEBC is. It is confrustrating – for those allied to Njonjo’s position – that a commission responsible for an outcome of an election in a country with 42 million people (all those other points Njonjo has raised notwithstanding) can be implicated in a corruption scandal that causes the jailing of citizens of another country implicated in that scandal and it is confrustrating for others who wonder whether the issue warrants demonstrations and a call for the removal of the IEBC commissioners. I was in a high profile 2 day discussion at the Kenya school of law recently. A senior professor from Kenyatta University gave an extremely engaging presentation on gender in political leadership. She nailed it on many points we needed knowledge on thus becoming the ultimate mentor on the “how to” manual on “how to run your world as a female CS, Prime Minister, President, MCA” etc . We were captivated – 47 women from all the counties – and we kept talking over lunch. Eventually I asked her what she thought of IEBC now that we were waxing political. She asked confrustratedly, “What is wrong with IEBC”?

Sammy Mate Well, the day we will view the opposition and government as the “one side” and we, the Kenyan citizens as the “other side”, we will have made a great stride in our quest for a progressive national dialogue on governance. The “one side” does not represent the “common good”. Whilst it may true that the political class is representative of the citizenry, this does not hold always. This is indicative of remarks made recently by individuals such as Moses Kuria and Ferdinand Waititu. What I am saying is that there is a “reasonable” contistuency that is not represented by the “one side” and this group is becoming bigger by the day. So, not to symie the conversation,but its possible that we are adding to the clamor in the “one side” house whilst we are better off consolidating our position on the “other side”.

Josh Kikuvi Kyama Mugambi, thank you for always raising such issues in a sober, direct and engaging manner. I’ll follow the dialscussion with a view to learn as much as listen. For what it’s worth, the manner and the substance of issues I’m contention has been very #confustrated to say the least. I’m not sure if that is by design or by default…but perhaps that’s neither here nor there. On the substantive issues at play between both sides, I will let others who may be better informed to enlighten us and candidly shed more heat than light. We lead the latter most in our country, although some may imagine that the former precedes the latter, or vice versa. But clearly, we do have issues with the referee in this game and no amount of charlatanism is going to blind the fact. It’s interesting to hear there’s more than IEBC in all these-perhaps not too surprised by that. But pray, why are these supposedly deal breaker issues not brought to the fore? Is such a way of engaging likely to pertain ad infitum going forward? Perhaps our political leaders need to be more mature and open in their discussions than perhaps they have been. Like I said, more light than heat. Very interesting discussion so following…

Muchiri Waititu For once i am happy that we can congregate and discuss issues without checking Kyama’s surname. My query is simple. If Mumo Matemu was removed constitutionally, then what is so difficult in removing the IEBC officials? Like Kyama, i am confustrated (nice word sir) and the lawyers are still adding more smoke. Every relationship has an exit/ termination clause. In marriage, it is divorce; In employment it is termination. What is the termination clause for the IEBC? Has it been exhausted? Street activism is a last resort to a situation. Why are we using it as the first? If the elected senators and M.P’s are also sincere in their condemnation of the IEBC and their inability to do anything in their power, should they not therefore resign?

Francis Kuria Very interesting discussions Kyama Mugambi. I have been engaged and it is true that IEBC is not the key issue. Indeed both sides agree this set will go. The question is deeper. And it is simple. Jomo Moi Kibaki Uhuru, ……? We cannot practise politics of exclusion (and insults) and not expect agitation. If the Kabogo remarks are considered in proper context (no support without our man beside to succeed you) then the problem is intractable. Kenya, and indeed most of Africa, with our ethnic politics and liberal capitalism with the state as main decider of who succeeds in business, cannot afford winner-take-all political contests. It won’t work. Our intellectuals failed us in Bomas.

Muchiri Waititu The world over is replete with countries with deeper schisms than ours.
Try catholic/ protestant in Ireland, Flanders/Wallonia in Belgium, castes in India, Sunni/Shia in the mid east.
We enacted a constitution to spread the pork! Primarily by giving power to the counties. Are we saying that this has failed?
I remain very suspicious of moves to assuage personalities rather than structures. Especially when the same personalities were at the forefront of agitating for a new constitution.

issack

Kyama Mugambi Good thinking friends! I am becoming more enlightened by the minute. So here is my summary of what I see so far. 1. The IEBC has failed Kenyans, both in terms of their integrity of service, and the structure [as enshrined in the current constitution.] 2. Both the current Judicial system, and the government of the day, have failed Kenyans on this issue. Means outside the constitution have been proposed, as the only solution. 3. Kenyans have been rallied to the streets by their leaders with 49% [round it off to the
non-governing 50%] mandate, to “demand” [not my words], electoral reform, to ensure a free and fair 2017 election. 4. It turns out the issue is not really the IEBC. [Where I would
customarily say “oh dear!”] It is deeper than IEBC, and touches on other matters, such as structure of government, nature of devolution, and other such things – all of which are further complicated by the geo-ethnic complexities of our context. Is this a fair summary of the foregoing?

Njonjo Mue Kyama Mugambi, with your every summary, you frame the issues in a way that I find hard to agree with, but I’ll let the matter rest here for now and thank you for creating the opportunity for such healthy debate on such an important issue. Barikiwa.

Kyama Mugambi That being the case. a. Njonjo Mue argues that going into an election with an untrustworthy electoral body is courting trouble. Agreed. However, knowing what we know about CORD, has there ever been a time when we can say that they gave the public confidence in the electoral institution? Or is it that our institutions, including our constitution, which they helped us pass, is fatally flawed and must be reformed outside of constitutional means. On the flip side, knowing what we know about Jubilee, and the nature of incumbency in power, can we expect that this will be a walk in the park for CORD, where any reforms brought will be signed of with the pen because the opposition said so, and they were backed by people in the streets? b. Kamotho Waiganjo argues that this can easily be resolved politically and legally. While I don’t fully understand politics and law, I would have to say this is very reasonable, and I accept it. It makes perfect sense to then question the need for the drastic means being proposed on this wall. However, what should Jubilee do to move this discussion forward? And are they doing it? Do they have a mechanism to check themselves to prevent them from being too hardline in their position, or do we just trust that they will know. c. From yet another angle, is there anyone checking the opposition to caution them against taking a position that will hurt the nation? Should we assume that they will know when they have gone over the line? d. If the problem is intractable because of our geo-ethnic complexities as Francis Kuria reminds us, then what is our fate? Will the current definitions of democracy then work? If a presidency has to be inclusive ethnically and geographically, what then is the use of elections? We should then just list the ethnic communities alphabetically, ask them to line up their presidential nominees and we just tour the position around the country. To put it differently, our constitution is not serving our reality. We have to address that at some point, politically, economically, socially, demographically and so on, either now, or sometime in the future. Address it though, we must. e. If we have to revisit the pertinent issues of the constitution and demand change using the last resort of mass action each time we face the challenges, then we will have a problem if we don’t already. I think this is where the wisdom of having a constitutional implementation body serves us well. However if to address the issue of a body that doesn’t serve us well, then we have to go outside elections, and outside parliament then we are exposing our nation. What is the use of the CIC? f. Njonjo Mue, there is an integrity issue, and you point it out in your posts above. I won’t gloss over that. And no, it is not an oversimplification. However there are legal means to address that. They haven’t been exhausted. Lets not kid ourselves. There is a way to change government officers and institutions, its in the law and the constitution. They haven’t been exhausted. I haven’t seen exhaustive parliamentary and senatorial debate from the 48-49% representation from CORD. In the same breath I will agree that Jubilee could do more to move this progress with their 50%. The “more” they should do is what I am not clear about. If we look hard enough we can find it. After all that’s what we pay them 1m a month to do [which they increased for themselves, with the help of
CORD representatives. See! bipartisan consensus in parliament is
possible, if both sides are committed to the cause]

Francis Kuria Agreed Kyama Mugambi. We in from faith institutions have proposed a post election Constituent Assembly to discuss these deeper issues and hopefully reach some agreement by 2022. Uhuru has promised to support such a promise but could not guarantee an outcome given our tendency for prevarication n brinkmanship

Njonjo Mue A final comment from me on this subject.

In 1997 when we took to the streets to demand constitutional reforms before that year’s elections, Moi called politicians from both sides of the political divide and they agreed on a set of minimum reforms to level the playing field (The IPPG Deal).

One of the reforms was to change the mode of appointing the electoral commission so that commissioners would be appointed on the basis of nomination by political parties based on their strength in Parliament.

Fast forward to 2007 and the terms of those commissioners were expiring. We pleaded with the Kibaki government to use the same formula to name their replacements, but we were ignored.

“IPPG was a gentleman’s agreement that was never enshrined in law, ” said the then Minister for Justice, Martha Karua. “It served the exegesis of that moment but does not bind the president now.”

Kibaki went on to unilaterally appoint all the commissioners except Kivuitu whose term was extended by one year.

Was Martha legally right? Of course she was. Was it wise or in the national interest to have one competitor unilaterally appoint the referee to oversee the closest election since independence because ‘we must follow the constitution ‘? The 2007-8 PEV provide a tragically eloquent answer to this second question.

We are courting disaster as we quibble about this matter while the window to act continues to close. If we continue to prevaricate. There shall be no country, let alone constitution, left to defend.

Wise heads must prevail.

Kyama Mugambi Thank you very much ladies and gentlemen for engaging me on this. I feel a little more enlightened. I have more questions, but I also have perspective, if not answers. As always Njonjo Mue Kamotho Waiganjo asante for the insights.

For the full conversation see: https://www.facebook.com/kyama.mugambi.7/posts/10153708739741476?comment_id=10153708830306476&notif_t=like&notif_id=1465797508852233

For further insights see Bishop Oginde’s perspective: https://citamblog.wordpress.com/2016/05/09/dialogue-best-solution-over-the-iebc-standoff/

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