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National Election Conference 2017  held at the Kenya International Conference Center (Courtyard)

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As Kura Yangu Sauti Yangu the overriding concern as the country nears another closely-contested presidential election is whether or not the contest will occasion political violence. This concern is grounded on the country’s history in recent elections, in which all contests where there has been an incumbent have been accompanied by violence. Thus, the violence that followed the 2007 elections, the worst in the country’s history, occurred in the context of a contest between the incumbent, Mwai Kibaki, and his challenger, Raila Odinga. The violence that preceded the 1992 and 1997 elections also occurred in a setting of President Moi, as an incumbent, facing a challenge from different rivals. By contrast, no major violence accompanied the 2002 or 2013 elections, neither of which had an incumbent president as a candidate.

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Kura Yangu Sauti Yangu would like to raise a number of concerns about the on-going recruitment
of members of the next Independent Electoral and Boundaries Commission (IEBC). The
recruitment process saw 15 candidates apply for the position of the Chair and 748 for the position
of member. Of the 15 who had applied for the Chair’s position, 5 were shortlisted while 36 applicants
were shortlisted for the position of member.

First, we demand to know the basis and criteria upon which the shortlisting was conducted.
The publication of the long list only provided the academic qualifications of the applicants. There
has been little or no public information on the other qualifications of the candidates that applied.

Second, Kura Yangu Sauti Yangu challenges the quality of candidates shortlisted for the
position of Chair. We note that the candidates shortlisted neither inspire public confidence nor
meet the minimum requirements of the chapter six on leadership and integrity, article 10, and
article 3 of the Constitution on the basis of their professional track record and personal integrity.

Third, Kura Yangu Sauti Yangu demands to know why a number of candidates were shortlisted
twice, first for the position of Chair and second for that of Commissioner. Is the Selection
Panel playing favourites to increase the chances of favoured candidates being appointed to the
IEBC?

Fourth, also of concern is the gender balance of the shortlisted candidates. Of the 36 applicants
shortlisted for the position of member of the Commission, only 8 applicants are women. If
the Selection Panel adhered to the 2/3 gender rule, it should have on the lower side shortlisted at
least 12 female applicants. We recall that public appointments in the recent past have seen the
gender rule violated by no less than the person in the presidency, as witnessed in the November
2015 cabinet reshuffle.

Kura Yangu Sauti Yangu therefore makes the following demands:
That the Selection Panel immediately makes public the process it went through
in deriving both shortlists, including the criteria relied upon and how those
shortlisted meet the criteria beyond their academic qualifications;
Since the current shortlist will not result in a suitable Chair, that the recruitment
process for that position be re-opened and the vacancy re-advertised;
That the Selection Panel should not consider candidates for appointment in
more than one position. Those currently shortlisted for more than one position
must be asked to select which position they would like to be considered for and
must be interviewed only for that position;
(a)
(b)
(c)
Co-Conveners Tushauriane… Constitution & Reforms
Education Consortium
(CRE-CO)
The Africa Center
for Open Governance
(AfriCOG)
The Civil Society Organizations
References Group
(CSO-RG)
The Independent
Medico-Legal Unit
(IMLU)
(d) That the Selection Panel ensures that the constitutional gender rule is taken into account
and given effect in the selection of IEBC members.
Kura Yangu, Sauti Yangu is a citizen movement spearheaded by like-minded civil society
organisations (CSOs) including the: Kenya Human Rights Commission (KHRC); Independent
Medico-Legal Unit (IMLU); Constitution and Reforms Education Consortium (CRECO);
InformAction; African Centre for Open Governance (AfriCOG); CSO Reference Group; Inuka
Trust; Katiba Institute; Development through Media; and International Commission of Jurists
(ICJ)-Kenya. They have come together to support Kenya’s preparations for the 2017 elections
with a view to ensuring the country minimises the risks related to the dysfunctional electoral
systems and practices of the recent past.
About Kura Y angu, Sauti Yangu
The Secretariat,
Kura Yangu Sauti Yangu – Coalition
Kenya Human Rights Commission [KHRC]
Opposite Valley Arcade Shopping Center, Gitanga Road
P. O. Box 41079 – 00100, Nairobi
Website: www.khrc.or.ke
Media Inquiries: mmedi@khrc.or.ke
0721724264

Except for the 2002 General Elections, all elections in Kenya since the first multi-party elections in 1992 have either been violent or so badly managed as to threaten to turn violent. The abiding nature of this instability indicates the problem is institutional and structural rather than managerial and transitory.

The primary problem is that incumbents lack interest in an honest election. This makes it easy to corrupt the electoral management body (EMB) and use it to favour preferred candidates. If this is not addressed, the credibility grity of elections in Kenya will never be guaranteed. Thus the replacement of the current Commissioners of the Independent Elections and Boundaries Commission (IEBC) is necessary but not suf icient to ensure credible and peaceful elections in the future. Personnel changes alone is a road well-travelled and will NOT secure the country’s next elections.

From 1992 on, no-one has been held accountable for electoral crimes. The Electoral Commission of Kenya (ECK) reforms of 1997 under the Inter-Parties Parliamentary Group (IPPG), the appointment of new Commissioners between 2002 and 2006 and the dismantling of the ECK and its replacement – first by the Interim Independent Electoral Commission (IIEC) and then the IEBC – has not changed fundamental flaws of the electoral system in Kenya. This suggests additional changes to the electoral system without political commitment to addressing the impunity embedded in the politics will not secure a credible electoral system.

The IEBC’s corruption and impunity become clear, first, from the recently-disclosed corruption of the IIEC and, second, from the spectacular failures of the IEBC in the 2013 General Elections. No less than a year from the ECK’s disbandment, its successor, the IIEC, was mired in even worse corruption. The criminal trial of Smith and Ouzman officials, a British company, revealed the company paid just over GBP349,0500 as bribes or ‘chicken’ to staff and IIEC Commissioners to secure printing contracts. The company also entertained IIEC officials – including the Chair Isaack Hassan – by paying their expenses and information on rival bids was leaked to Smith and Ouzman.

Matters only got worse in 2013, as revealed in the decision of the Public Procurement Appeals Tribunal, the Auditor-General’s Special Audit on the Procurement of Electronic Voting Devices for the 2013 General Election and the Public Accounts Committee’s Special Audit Report of June 2014. All showed that the IEBC manipulated a tender to the benefit of Face Technologies, a South African company.

There is thus a mass of evidence that Kenyan procurement and electoral laws have been violated. There must be a process of individual accountability for these breaches. Yet the Joint Select Committee has opted to negotiate the exit of the current IEBC Commissioners. Under the Constitution, nothing prevents a commissioner from resigning ahead of the period of appointment. But then they do not get any remuneration for the unfinished period—as suggested by the Select Committee. The recommended payments to the IEBC commissioners are unconstitutional, and entrench impunity by rewarding wrong-doing.
We therefore demand that recommendations from the three reports mentioned above that would lead to prosecutions of any and all individuals found culpable be pursued.
The IEBC secretariat itself is also demonstrably extensively infected with partisan and corrupt relationships with the commissioners and outside political interests. Therefore the process of exacting accountability cannot be limited to commissioners but must include leading secretariat staff who managed egregious systemic failures and lapses in integrity.
We further demand that the IEBC Commissioners be cut down to the constitutional minimum of three b technical expertise only.

Related, the mechanism the Select C mittee has settled on to appoint new IEBC Commissioners is dominated by faith-based organisations (FBOs). Whereas FBOs played a role in efforts leading to the Select Committee establishment, for various historical reasons, they do not sufficiently embody public consensus on any matter. The FBO leadership is not necessarily above the country’s partisan interests and the idea of an independent selection panel will perish the moment it is dominated by any one sector.
We therefore demand that the selection of the next IEBC Commissioners be done by a multi-stakeholder selection committee. The selection committee should include nominees of parliamentary political parties chosen through the Parliamentary Service Commission (PSC), representatives of non-state actors and the private sector.

The IEBC has never settled on a final register of voters. The recommendation that the register should be audited and cleaned is thus erroneous and futile.
We therefore recommend that there should be fresh registration of voters once the new IEBC is established.

Oddly, the Select Committee failed to address the skewed and selective process by which ID cards are issued despite public outcry.
We therefore recommend that, as part of the extended mandate of the Select Committee, there should be a term of reference requiring an in-depth investigation of the problems related to accessing ID cards.

Citizens are also concerned about the actual management of elections, including the use of technologies in the processes of registration of voters, and the counting, tallying and transmission of results.
While, in principle, we welcome the use of technologies, there should be stakeholder involvement in the selection of the technologies and only technologies that promote the transparency and verifiability of elections should be allowed.
We further recommend that the results announced at the polling station should be final and cannot be changed except by an order of the court. An audio-visual record of the result announced must be kept and a screen shot of the results given to the media and all parties participating in the election in real-time

Finally, it is clear the Select Committee was a narrowly-constructed mechanism to address a limited set of issues to do with the removal and replacement of the current IEBC commissioners. While the exclusive nature of the Select Committee undermined constitutionally required public participation, a large number of issues important for the political stability of the country in relation to the 2017 General Electi w re outside its mandate and were therefore not addressed. These include the political polarisation and embedded impunity that continue to plague the country, the on-going risk of political violence and the unimplemented two-thirds gender rule. Also there are es relating to the internal frailty of the judiciary which is an elections dispute resolution mechanism and overall leadership and coordination among public institutions entrusted with the management of elections.

Kura Yangu Sauti Yangu has raised these issues on many previous occasions and remains convinced that there is still need for a structured dialogue on these issues. While the Select Committee’s achievements on the IEBC constitute progress, we must come together to discuss those pending issues.
We, therefore, call upon the political leadership to convene a multi-stakeholder dialogue process on the General Elections 2017.

Kura Yangu ,Sauti Yangu is a citizen movement spearheaded by a number of like-minded civil society organizations (Kenya Human Rights Commission, Independent Medico-Legal Unit, Constitution and Reforms Education Consortium, Inform Action, the Africa Centre for Open Governance, the Civil Society Organization Reference Group, Inuka Trust, Katiba Institute, and the Kenyan Section for International Commission of Jurists) who have come together to proactively support Kenya’s preparations for the 2017 elections with a view to ensuring that the country minimizes the risks related to dysfunctional electoral systems and practices which the country has experienced in the recent past.

The Secretariat,

Kura Yangu Sauti Yangu – Coalition Kenya Human Rights Commission [KHRC]

Opposite Valley Arcade Shopping Center, Gitanga Road

P. O. Box 41079 – 00100, Nairobi Website: www.khrc.or.ke

Media Inquiries: mmedi@khrc.or.ke / 0721724264 3

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