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The undelivered promise of electoral justice by the Constitution of Kenya, 2010:

Background information and possible reforms

Since we attained self-independence as a nation in 1963, every single election that we have is always followed by unnumbered election petitions and a lot of violence. This clearly shows that Kenyans have no trust in our electoral systems including the electoral commissions that the 2010 Constitution of Kenya tends to classify under the so-called “Independent bodies”.[1]

Demands for electoral justice and reforms have been a dominant feature that has always encroached on every single election cycle in Kenya. Despite this fact, our electoral system is still incompetent, frivolous and vexatious. It is now more than 30 years since Kenya reinstated itself to be a multi-party democratic state. When this happened in 1991 and we had our first multi-party elections after a long period of tyrannical rule. We hoped that it would be the beginning of a journey towards free, fair and just elections. To our utmost disappointment, our hopes gave birth to no result. Instead of achieving what we expected, this even worsened the state of elections in our country many of the guys who fought for it were “ostracized” as if they had committed a felony that is punishable by extinction. We went forth to make a new Constitution in 2010 but it still has not met what we had aspired for or foreseen. It has provisions on how we ought to conduct our election but still goes silent on some issues. In my view on the aspect of elections, we did nothing short of just making a pseudonym of the previously repealed Constitution on the electoral provisions. This in a real sense contravenes its provision in Article 259(3) which states that this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking. It is very, if not quite, silent on matters of elections. The three elections that have been held since the enactment of the 2010 Constitution still fail to meet the requirements that one may need to say that they have been conducted in a free and fair aspect. They have been open to doubts and a lot of critics. Worse of it all is the fact that the Supreme Court of Kenya nullified the Presidential elections of 2017. This sent a signal unto not only Kenya but also the whole world that the constitutional provisions on elections should be revised if not to be changed. 

This unequivocally manifests the fact that our systems do not meet the constitutional requirements for a free and fair elections.[2] This includes an election free from violence, intimidation, improper influence or corruption. The major elephant in the room is that we have laws that are honored in breach simply because we have no laws implementing the existing laws. The laws governing elections are mostly unenforceable.  A lot of electoral reforms have taken place in Kenya since independence, but the question is, what height have they achieved?

Due to the failures in the electoral reforms that had taken place and their prolonged promise of delivering the promised electoral justice, Kenya enacted a new Constitution in 2010 with the hope of achieving the long time unachieved goal. Despite this, the Constitution has still failed to reach the desired end. Nicocolo Machiavelli said that Constitutions ought to be a means to the end instead of being an end of the means.3 The Constitution of Kenya 2010 has failed to prove itself as a means to the end on the aspect elections. This is clearly justified by the following:

[1] Article 248(2)(c) of the Constitution of Kenya.

[2] Article 81(e) of the Constitution of Kenya.

3 Niccolò Machiavelle, The Prince (1500).

1. Independent Electoral and Boundaries Commission as an independent body

The Constitution of Kenya 2010 outlays the Independent Electoral and boundaries commission as an independent body.[1] This fact is only true in paper as in real sense the body has a lot of interference from the three arms of government. The Constitution provides that independent bodies are subject only to the Constitution and the law alone and they are independent and not subject to direction or control to any person or authority.[2] This unequivocally contravenes many other provisions that have been given by the same Constitution. One of the provisions is on the issues of funds. The Constitution provides that it is the parliament that will allocate funds to enable the independent offices to perform their functions.[3] How can we claim that the body is an independent body, yet it draws its funds from a body that they overlook during elections? The parliament majority is made of Members of Parliament who are elected via an election that is monitored by the Independent Electoral and Boundaries Commission. What a flabbergasting situation? 

Who legislates on elections? The Constitution of Kenya 2010 provides that parliament shall enact legislations to provide for the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the national assembly and county assemblies, the nomination of candidates, the continuous registration of citizens as voters, the conduct of elections and a referenda, including the nomination of candidates for elections and ensuring a progressive registration of citizens residing outside Kenya. This is a point of the Constitution that clearly contravenes the provision of having the Independent Electoral and Boundaries Commission as an independent body. They are the ones who conduct elections of the Members of Parliament. How can it again that it is the parliament that determines how they will conduct their work?

This has to be changed and reformed for us to achieve a convectional end. Independence is independence. We have to change this provision to ensure that the bodies have no interference of any sort from the other arms of which the body is supposed to monitor. As a solution to this is to ensure that we put into place a fourth arm of government. The Constitution of Kenya 2010 provides a fourth Arm of government but only in an implied form.7 As a Nation we have to go forth and ensure that we have constitutional stipulations on how to ensure the bodies that mainly deal with independent issues have minimal interference and if need arises, we have to do it ex-abundanti cautela (out of excessive caution). 

The government still interferes with the roles and operation of the Independent Electoral and Boundaries Commission in many other aspects. Who appoints the Chairpersons of these Independent Commissions? The Constitution provides that it is the president who appoints the chairs of the independent commissions.[4] Lord Atkin in his letter to Bishop Mandell speaks about how power tends to corrupt and absolute power corrupts absolutely. He goes forth and says that great men are always bad men even if they exercise influence and not authority. The president is a mere reasonable man and once power has been vested in his hands, he will work it out to ensure that what benefits him comes first. For example, take a case where we have an incumbent president who is serving his first term and he has the power to choose the person who is supposed to chair an upcoming election of which that president will be part of those in the ballot? This is greatly unreasonable. As a matter of fact, from a reasonable person test, one will choose a Chair who will consider his or her interest in the forth coming elections. To be precise, we need at least to have a body that is independent and in no form does it have connections to the elections, choose the chair of the Independent Electoral and Boundaries Commission. 

An additional factor to put into consideration is the issue of the term limit that we have for the chairs of these independent bodies.[5] We hold elections after every 5 years yet the commissioners hold office for 6 years and are barred from applying for re-appointment. This is very imprudent as it may make one think of or do a wrong thing simply because they know that never again shall they be allowed to apply for that post. The other part to consider is the issue the chair of the Independent Electoral and Boundaries Commission being barred from taking part even in private matters such as his own personal businesses and contractual matters. Man is always after money. If we bar them from engaging in their private offices work, we are creating a risk that when they get to the post, they will first seek for means to fulfill what they would have gotten from those private activities. Thus, we need to ensure that as much as we are making this body independent, it does not interfere with the private life of the Chairpersons.

Furthermore, an additional fact to put into consideration is the procedure and the process not forgetting the bodies that are involved in the removal of members of the IEBC from their positions. The Constitution provides that a person who wishes for the removal of the Independent bodies members shall file a petition with parliament.[6] It is further provided that if the National assembly is satisfied that the petition discloses the provisions of clause 1,[7] it will send the petition to the president.[8] Can we as a nation think of what will happen if the chair had contravened orders given by the executive? It is the IEBC that holds Presidential elections. How then does our Constitution allow the president to be the one to determine whether one is fit to continue holding a post in the IEBC? 

In addition to the stated above, the Constitution of Kenya when stipulating independent bodies that have the power to summon witnesses to come and give evidence, it excludes the Independent Electoral and Boundaries Commission. This makes it tough for the commission to handle issues that may arise such as claims for voter bribery and issues to deal with hacking of the systems of the body simply because that has not been stipulated within their jurisdiction. Thus, as a nation we need to repeal Article 252 (3) and ensure that the IEBC is part of the bodies that can issue a summon to another party. The Constitution of Kenya 2010 also provides that the independent bodies at the end of each and every financial year shall submit a report to the President or Parliament.[9] It further provides that the President, the National Assembly or the Senate may require a commission or holder of an independent office to submit a report on a particular issue.[10] This denies the independent bodies of which the IEBC is part an opportunity of conducting their activities independently. If need be that we should have the IEBC summoned on its matters, it should be done by a body that is not in any way involved in the ballot or any electoral process in Kenya. If we embrace the stated above, I believe we can then have an independent body that will forecast a great milestone towards the desired electoral justice in Kenya.

[1] Article 248(2)(c) of the Constitution of Kenya.

[2] Article 249(2) of the Constitution of Kenya.

[3] Article 249(3) of the Constitution of Kenya. 7 Article 59 of the Constitution of Kenya.

[4] Article 250(2) (c) of the Constitution of Kenya.

[5]  Article 250(6)(a) of the Constitution of Kenya.

[6] Article 251(2) of the Constitution of Kenya.

[7] Article 251(1) of the Constitution of Kenya.

[8] Article 251(3) of the Constitution of Kenya.

[9] Article 254(1) of the Constitution of Kenya.

[10] Article 254(2) of the Constitution of Kenya.

2. Free, fair and just elections  

Does the Constitution of Kenya 2010 really meet the provisions for a free and fair elections? If so, why do we have post-election violence after every single election that we have in Kenya?

Guy S Goodwin-Gill in his book “free and fair elections” defines free and fair elections as those that are based on the will of the people.[1] He goes forth to state other factors such as electoral legislations and systems, civic education, and voter information. He also speaks of how election campaigns ought to be conducted and states that it should be in a way that preserves, and respects fundamental human rights stated in Chapter 4 of the Constitution of Kenya, 2010.

The Constitution provides that the Independent Electoral and Boundaries Commission shall ensure that whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent. When the system meets the above-stated requirements, we will have an election that is geared toward justice. It is in Africa and especially in Kenya that we have Constitutions that are honored in the breach. Our Constitution has got good laws but lacks laws that ensure the implementation of the other documented laws. 

The Constitution provides that every citizen has the right to a free, fair and regular elections based on universal suffrage and the free expression of the will of the electors.16 For this provision to be met, we have to ensure that the political parties do not interfere with the electoral process, the elections are cast via secret ballot, every person who has attained the age of majority mentioned is section 2(1) of the age of Majority Act and in Article 260 of the constitution of Kenya 2010 is able to vote and we have proper civic education before we go to the ballots. We also have to put into place mechanisms that will ensure issues such as voter bribery and votes suppression are keenly looked at and the appropriate measures taken against those who contravene the stated above. We must also look at the issue of having well-trained and qualified people conduct our elections.

We will start by discussing the main issue which is registration of voters. Section 3(2) of the Elections Act provides that every citizen shall exercise the right to vote if the citizen is registered

[1] Guy S Goodwin, free and fair elections, Geneva: Inter-parliamentary Union, 2nd revised and expanded edn 2006. 16 Article 38(2) of the Constitution of Kenya.

in the Register of Voters.[1] As a nation we need to further subdivide the body of the IEBC that is responsible for registration of voters in order to be able to reach everyone including the marginalized groups. The Elections Act provides for polling stations.[2] In our nation, the stations are always active only during election periods. This makes it difficult for a people who may want to be registered as voters in the middle of the election periods to get registered as voters. We need to amend the Act and ensure that we have a place that clearly stipulates that stations that deal with the registration of voters are open and easily accessible even to the least in society. To add on that, the Constitution provides that a citizen who qualifies for registration as a voter shall be registered only in one registration centre of which they will exercise their political right to vote from that center.19

[1] Act No. 36 of 2016.

[2] Section 4(1) of the Elections Act No.36 of 2006. 19 Article 83(2) of the Constitution of Kenya 2010.

who may want to be registered as voters in the middle of the election periods to get registered as voters. We need to amend the Act and ensure that we have a place that clearly stipulates that stations that deal with the registration of voters are open and easily accessible even to the least in society. To add on that, the Constitution provides that a citizen who qualifies for registration as a voter shall be registered only in one registration centre of which they will exercise their political right to vote from that center.19

In my view, this makes it difficult for one to vote from wherever they are since they have to get back to the specific points and places of registration. The purpose of the law is to serve people and not to enslave them. This is always seen in poor nations at any time that we go to the ballots. There tend to be a very huge traffic congestion as each and every person tries to find their way back to the points in which they registered as voters. We can think of a way in which we modernize the electoral system that we use as a nation and at the same time we put into consideration the poor. We can develop an online system of voting that uses finger prints but at the same time still uphold the manual voting system as we struggle to ensure that everyone in the nation knows how to read, right and use modern technology. We can choose to use electronic voting (e-voting) by either choosing to use electronic voting machines (EVM) or using computers connected to the internet (online voting). By the time we are using Electronic Voting Machines, this will ensure that the right of the illiterate of voting is captured as they will be able to get to the polling stations and be assisted to cast their votes. This method will also ensure compliance with Article 86 of the Constitution of Kenya which provides that elections should be accountable, fast and reliable. This can also be of great impact when we speak on the issue of voter turnout. The Constitution of Kenya does not make provisions on the mechanisms that are to be used to ensure sufficient voter turnout. We end up having in some areas as little as 60% turnout and thus we end up with leaders who have been chosen only by a section of the nation.

Secondly is the issue of proper civic education. The Constitution of Kenya 2010 mentions the role of the Independent Electoral and Boundaries Commission as ensuring sufficient voter education.[1] This is just stated in theory, and we do not have a clear articulation on how this ought to be done. Research has shown that almost 20% of Kenyans are illiterate and cannot totally read or right.  The Constitution only speaks lightly on this civic education and it does not give a detailed explanation on how it ought to be conducted. This is the basis of any election that may be deemed to end up in a fair aspect. How will an old grandmother with whom all the systems and languages used are new to her be able to understand how to go about after arriving at an electoral station? We need to repeal our Constitution and ensure that the issue of the elections being simple, transparent and eligible are met.21 We also need to ensure that the electoral system takes into account the special needs of the persons with disabilities and other persons or groups with special needs. 

A transparent election is one that people can easily accept without raising any contention. This has never happened in our country. Despite the fact that the Constitution provides for anyone to institute a case challenging presidential elections, I still feel that the requirements are too high to be met by an ordinary “Wanjiku or Kamau” Where will an ordinary Kenyan get 1 million shillings as security of the costs and Sh500,000 for filling?  Put that aside. What percentage of Kenyans have access to courts? Research has shown that it is only 5%. This means that the provision of the Constitution in Article 140 that any person may file a petition in the Supreme Court challenging presidential elections results is nothing but a mere theory in Kenya. 

What of the issue in the timeline required for filling of that petition? How can a person collect enough evidence in an election malpractice offence within 7 days yet even basic civil cases do not have that minimal time limit? How will the Supreme Court go through all the evidence that the petitioner has provided and make its verdict within 14 days? This has to be a major reform for us to move a milestone higher. We have to increase the time limit within which a petition can be filed and we reduce the charges so as to ensure that anyone who has doubts in the elections can go forth and file a petition by himself or herself. The people are the sovereign, it is they who clearly and undisputedly know what sought of leaders they want. They also understand the conduct that these leaders ought to bear. The Constitution of Kenya 2010 does not meet this. It provides that it is the role of the Independent Electoral and Boundaries Commission to set out a code of conduct that leaders should meet to be factored in as eligible candidates. Only the wearer of the shoe knows where it pinches the most. Only the people know what sought of leaders they want and the conduct of the leaders. 

[1] Article 86(4) (g) of the Constitution of Kenya 2010. 21 Article 82(2) of the Constitution of Kenya 2010.

Correspondingly, the Constitution of Kenya 2010 also needs reforms when it makes provisions on electoral issues dealing with political parties. The Constitution provides that it is the role of the parliament to make legislations to provide for issues such as reasonable and equitable allocation of airtime to the political parties.[1] The Members of Parliament form the second largest part of the election ballots. They also form the second largest part of the political parties after the Members of the County Assemblies. How then can a body provide checks and balances for itself? How will the campaigners themselves make laws to govern how they campaign? It is clear that they will make them in favor of themselves. If we allow this to prevail, then we will be putting the provision of the Constitution being interpreted holistically at risk and we will subvert the issue of political parties acting in ways that promote the rule of law. A reasonable man will always make his or her surroundings fit to fulfill their own desires. It is obvious that this Members of Parliament will try their best to ensure that the law governing the political parties serves their interest and not the interest of the general public. The Constitution provides that the legislation will also include restrictions on the use of public resources to promote the interest of political parties.23 What governs who Kenyans will give votes to according to the history of our electoral systems and periods is who is able to supply the needs of Kenyans at the time of elections. We tend to be blinded by small and mere factors to a point of forgetting that a decision that we make in a short period of time will bear a great impact on how we shall live our lives for the next 5 years if not 10 years. Political parties tend to ensure that they utilize these public resources in their favor. This then means that when the National Assembly is making the legislation, then the interests of the party that has a majority of its representation in parliament will always take the day. The interest of the minority which as a matter of fact always represents the interest of the majority of the tribes in our nation shall be subverted. To correct this, I would suggest that we employ the system that is used by the United States of America in choosing their president. In as much as we have a President winning by numbers, it will be very saddening if we are ruled by a few communities that have a majority of the people in Kenya.

3. Election of the President in Kenya and how it should be announced

Just recently we had our presidential elections as a nation on the 9th of August 2022. The election was followed by 9 presidential election petitions in the Supreme Court of Kenya. One of the major issues for discussion was the constitutional provision on the quorum of the members of the Independent Electoral and Boundaries Commission that ought to decide who has won the elections. There was a great claim on the Constitution contravening itself on that issue. The Constitution provides that after counting of the votes at the polling stations, the Independent Electoral and Boundaries Commissions shall tally and verify the count and declare the result.[2] It further makes a conflicting provision that within seven days after the presidential election, the Chairperson of the Independent and Boundaries Commission shall declare the result of the elections and deliver a written notification of the result to the Chief Justice and the incumbent President. 

The first big question is, who determines the winner of the elections? Is it the chairperson of the commission or is it the majority of the quorum of the seven commissioners? The second issue that comes in is what will happen in a case where the incumbent president was a contestant in the elections? I will now delve into the first issue. Whose role is it? In the Maina Kiai case,[3] the Court of Appeal recognized the chairperson’s distinct role and stated: “It cannot be denied that the chairperson of the appellant has a significant constitutional role under sub-Article (10) of the Article 138 of the Constitution of Kenya as the authority with the ultimate mandate of making the declaration that brings to finality the presidential election process. Of course, before he makes that declaration his role is to accurately tally all the results exactly as received from the 290 returning officers countrywide, without adding, subtracting, multiplying, or dividing any number contained in the two forms from the constituency tallying center. If any verification is anticipated, it has to relate only to confirmation and that the candidate to be declared elected president has met the threshold set under Article 138(4).

[1] Article 92(1) of the Constitution of Kenya. 23 Article 92 of the Constitution of Kenya.

[2] Article 138(3) (c) of the Constitution of Kenya. 

[3]   Independent Electoral & Boundaries Commission v Maina  Kiai & 5 others Civil Appeal No. 105 of 2017 eKLR

The Constitution ought to be clear and state who is to declare. This part greatly needs immediate reform. In order to ensure that we have appropriate checks and balances among the commissioners, it’s my view that we can have the chairperson be the one to declare but he or she should do this after the whole board of commissioners has keenly verified the transparency and clarity of the results that are to be announced. By doing so and incorporating the same into our Constitution, we will ensure that it is the interest of the people that is put into consideration and not the interest of the lead commissioner. We should also go forth to give security of tenure to all the seven commissioners so as to ensure that they work with no fear in upholding electoral justice and ensuring a simple, transparent, accurate and verifiable elections. According to the case of Maina Kiai stated above, the court was clear that we have roles that have been given to the chairperson but the role of drafting the final results is for all the seven commissioners. The Supreme Court in the case of Raila Odinga and 16 others v William Ruto and 10 others,[1] the court held that it is the chairperson of the Independent Electoral and Boundaries Commission that is supposed to announce the result but in verifying and tallying all of them ought to be greatly involved. This can only be of help if we go forth and clearly make a constitution that makes an articulation on that.

Concluding thoughts 

This concept of elections and electoral justice stretches beyond what is provided by the Constitution of Kenya 2010. Unless we sit down as the sovereign of this nation and draft with the help of election scholars reforms that we can put into our Constitution to ensure a free and fair election, we will live thinking of holding just elections but never achieve it in practice. An effective electoral system ought to fulfil the issue of simplicity, transparency, and clarity while simultaneously uphold the rule of law, human rights and social justice.

The author is a first-year law student at Kabarak University. His research interests include but are not limited to transformative constitutionalism, dispute resolution, election law and policy.

[1] Presidential Election Petition E005, E001, E003, E004, E007 & E008 OF 2022(consolidated).

Guest author The Platform Magazine