The institution to watch in Kenya’s election

The March 4 general election in Kenya is being touted as a potentially transformative moment. The violence that killed over 1,000 people in the wake of the country’s last election in 2007 shocked the world, confirming, for many outsiders, the stereotype of an incurably dysfunctional Africa. Now many will be watching to see whether the spate of sweeping reforms undertaken since 2007 can carry Kenyans peacefully through this historic poll and reaffirm the country’s position as the region’s most stable state.

Much of the reporting is likely to focus on the problems of tribal or ethnic divides. Yet there is a much better argument for paying attention instead to the crucial Independent Electoral and Boundaries Commission (IEBC), which will be overseeing the vote. If the IEBC succeeds in asserting the ground rules for a fair election, Kenyans can rightfully celebrate a hopeful watershed in their country’s recent history. By the same token, a poor job by the commission could easily trigger a repeat of the violence that has resulted in several of Kenya’s leading politicians being indicted by the International Criminal Court. Indeed, it was the questionable judgment of the former electoral commission — which first accepted the dubious results of the 2007 vote and then hastily facilitated the swearing-in of incumbent President Mwai Kibaki — that, within minutes, sparked violence across the country.

The stakes are also high this time around, because this election is being held according to new ground rules embodied in the constitution of 2010, created partly in response to the tragic events of a few years earlier. The new constitution provides for far-reaching devolution, opening up the possibility of a cure to the regional rivalries that have so often hobbled democracy in the country. But that potential can only be realized if the commission ensures a free and fair poll.

At first it looked as though the IEBC might live up to the expectations of the optimists. It enjoyed high levels of public confidence, in part because there was a concerted effort to make a break from the past. The search for commissioners was a transparent process, with each candidate’s interview open to the public. The final team selected was also purposely diverse, representing many of Kenya’s minority communities.

Unfortunately, it’s been all downhill from there.

Far and away the most spectacular of the commission’s failures has been the one that has gained the most domestic and international exposure: Its failure to block the presidential candidacy of Uhuru Kenyatta despite his indictment by the International Criminal Court. That’s a move that has not only bruised Kenya’s reputation in the international community, but also opens up the likelihood of major instability in case Uhuru (and his indicted running mate William Ruto) actually win. The court had set April 10th and 11th as the days the men must appear before it, but the trial has been postponed till later in the year to avoid clashes with the second round of run-off elections. It still however, raises the possibility that Kenya’s newly elected leaders might have to take a break from running the country to defend themselves in the Hague.

To be fair, the IEBC has few options. A series of laws, passed in recent months, watered down constitutional integrity standards for public office holders, eliminated educational requirements for certain offices and removed checks on politicians’ powers to party-hop at will. Such laws allow those with pending criminal cases to run for office and strip relevant commissions from investigating and prosecuting violators. Still, the IEBC’s silence on the issue of candidates’ lack of integrity, which extends to lower-level candidates who are known drug lords, criminals, and others guilty of engaging in ethnically divisive hate speech, begs questioning.

It’s all part of a general attitude of laxity toward the law exemplified by the Commission’s failure to enforce the most basic rules — a dysfunction that extends all the way to such mundane details as the procurement of biometric voter identification kits and ballot papers, a process that has been marked by allegations of corruption. The Commission has compounded its own deficiencies by its unwillingness to live by the same principles of accountability and openness that it’s supposed to have applied to the election.

But perhaps the most tragic of the IEBC’s mistakes has been its failure to help provide voters with information critical to making an informed decision on Election Day. Although the IEBC released its voter education curriculum in October 2012, it waited until three weeks prior to elections to begin its voter education program. Needless to say, most voters are still in the dark about who the candidates are, especially at the local level, what the new devolved arms of government are, and what the newly created local elective officers will do.

Kenya is facing a crossroads, and the events of Election Day could determine which fork in the road to choose. Let’s hope voters seize the spirit of the new constitution and demand a public commitment to making and maintaining a break with a painful and disturbing past.    

Seema Shah is a public policy researcher for the Africa Center for Open Governance in Kenya. Her focus is on elections and ethnic violence.