By ISSACK HASSAN
Ahmed Issack Hassan is the former Chairperson of the Independent Electoral and Boundaries Commission (IEBC) from November 2011 to October 6th 2016. Before that he was the Chairperson of the Interim Independence Electoral Commission (IIEC) from May 2009 to November 2011. He was appointed on November 9, 2011 to Chair the IEBC following a recommendation by Parliament.
Hassan and his seven commissioners were removed from office by the then Coalition for Reforms and Democracy, led by opposition leader Raila Odinga in October 2016m following a violent mass action campaign.
In January this year, the new set of commissioners led by Ezra Chiloba and Wafula Chebukati took over.
In his forthcoming memoirs, Hassan recalls how the IEBC has been reduced to a scapegoat by a repeat-loser in the Presidential election and his surrogates.
In December 2007 Kenya held its General Election. The results of the presidential election was disputed by the loser, who refused to go to the courts to challenge the results as declared and called for protests and mass action. This degenerated into a near civil war with hundreds of deaths, destruction of property and thousands of internally displaced.
It took the intervention of the African Union, European Union, the United States and the United Nations, through a mediation effort led by Koffi Annan, former Secretary General of the UN, to bring peace to the country. A National Accord was signed by the warring factions and a coalition government of the opposition and ruling parties was established. A commission of inquiry led by Justice Kriegler (former South African Elections Chief) was formed to inquire into the disputed elections.
This commission recommended reforms in the elections, political parties, civil society and media. This report was thereafter selectively implemented when the opposition, already unhappy with the EMB for the conduct of the elections, started a clamour to disband the electoral body.
The Electoral Commission of Kenya (ECK)was responsible for elections in Kenya. It was established under article 44 of the Constitution of Kenya. It was a constitutional body with a chairperson and 22 commissioners appointed by political parties in proportion to their strength in Parliament. Once appointed, the commissioners enjoyed security of tenure for their 5-year (renewable once) term and could only be removed through a process similar as that of the removal of a High Court Judge.
Following the post-election violence that followed the disputed presidential elections in 2007, the electoral body and its chairman became a convenient scapegoat for blame. They were subjected to very public trial by and through the media and condemned unheard. The chairman of the ECK, the late Samuel Kivuitu, bore the brunt of the attacks. He was quoted out of context by media houses who edited his answer to a question he was asked, “Do you think President Kibaki won fairly?” He had answered, “I don’t know because winning fairly entails more than just having the most votes.” And went on to explain the precepts of a free and fair elections and level playing field. The media houses edited this answer and just took the first two words “I don’t know” and went on to create the impression that the election chief did not know who won the presidential elections of 2007.
After ten months of persistent and sustained attacks on the ECK, protests and political rallies by politicians, the stage was set for the sacrifice of the EMB. In December 2008, Parliament passed by more than the required 2/3 majority, an amendment to the constitution by deleting section 44 which established the ECK and inserting a new section 44A that established the interim Independent Electoral Commission(IIEC). This effectively meant the dissolution of the ECK (established since 1992 ) and ending the tenure of office of all the commissioners and the 650 members of staff forming the secretariat. This amendment was a short cut to avoiding the long process of appointing tribunals for the commissioners to confirm the guilt of whatever misconduct that they were being accused of.
After the disbandment/dissolution of the ECK in December 2008, Kenya did not have an EMB for four months until May 2009, when the Chair and 8 commissioners were appointed to form the IIEC. I was appointed the Chair of this Interim Commission after going through a public interview and vetting by parliament. My professor of Law on learning of my appointment called me and told me of his dilemma of, “whether to congratulate you or offer my condolences.” The appointment was for a period of 24 months and the key functions of the body was to conduct fresh voter registration of voters and hold a referendum for a new constitution that was to be adopted the following year.
The IIEC enjoyed the same constitutional status as the ECK and additionally section 44A emphasized its independence to the effect that,” in the exercise of its functions it shall not be under the control or supervision of any person or authority.”
( 2 ) “which part of the word Interim do you have difficulty understanding.”
“which part of the word Independent do you have difficulty understanding?
As chairperson of the Interim Independent Electoral Commission, I quickly discovered the push and pull and the tension that develops between the political class and the EMB. The politicians never missed an opportunity to remind us they were the “boss” and if we “grew horns” they could easily deal with us the way they dealt with our predecessor, the ECK. Other mischievous political actors will point out to us the oxymoron that was our name – Interim and yet independent. We did our work as impartially and professionally as we could and vigorously maintained our independence in word and in action. I will soon come face to face with the intolerance of the political class (both in the executive and in the legislature) to our insistence on our independence and not bowing to undue pressure or political instructions.
As the country prepared to adopt a new Constitution, the commission commenced the voter registration exercise for a period of 30 days, time being of the essence. On the last day of the exercise long lines of people waiting to be registered were reported by the media. This was against the previous week’s, where the voter registration centres were reporting zero visitors. Some in the government wanted the exercise extended by the commission for two more weeks. I was invited together with my Chief Executive Officer/Head of the Secretariat, to attend a meeting chaired by a senior official of the executive and attended by the Attorney General, 6 cabinet ministers and 6 permanent secretaries ostensibly to discuss the extension of the period of voter registration.
Unknown to me, the media was already invited to cover the press conference that we shall be addressing later to announce the extension of the voter registration exercise. When I was asked to go along with this and basically to rubber stamp a decision already made, I refused and reminded those in the meeting that the commission was independent and will not take instructions from any person or authority. Further, I said that such request will have to be considered by the whole commission after input from its technical staff. When the Treasury boss in the meeting said he was ready to give a cheque for any amount of money required for the extension, I said we would prefer “a cheque for two weeks!”
This did not please the person chairing the meeting, who was visibly annoyed but took note of my position and closed the meeting. As I left the meeting, a senior official in his office escorted me to the lift and asked me, “Mr Chairman, don’t you know you are Interim?” to which I replied, “yes”. He then asked a follow-up question, “So which part of the word Interim do you have difficulty understanding”.
Having understood the message contained in this pregnant statement, I replied, “Yes I understand that I am the chairman of an Interim body but it’s also independent. Which part of the word independent do you have difficulty understanding?” I asked.
[The commission later met and announced an extension of the exercise for 4 days].
The new Constitution provided for the IEBC that was to replace the IIEC and it was expected that, with our experience and for the purpose of continuity, we shall apply to be appointed to the IEBC. Obviously, such appointment will not be divorced from the political forces as the new commissioners will be approved by Parliament and appointed by the President (in consultation with the Prime Minister), hence the above exchange.
As chair of the Interim Electoral Commission, I had several other run-ins with the political class in the Executive, especially in the run-up to the referendum in August 2010. The ministry of Finance and the Justice ministry provided several instances that tested the limits of our independence as the former was in charge of the national purse and the latter purported be our parent ministry – and tried to act like one!
As we prepared for the referendum it became increasingly clear to us that the Coalition Government was not fully united in support for the new Constitution. Some were opposed to it or wanted to delay its enactment and tried every effort to use the commission to achieve their goal while avoiding public blame. These ministers were called “watermelons” because of their perceived hypocrisy, pretending to support the new Constitution in public but doing the opposite in their inner circles. The symbol for Yes to the Constitution was green and No was red, hence the name watermelon!
In the runup to the 2013 General Election, the Cabinet decided that Kenyans in the diaspora will not be allowed to vote in the elections. This was a serious threat to the independence of the commission, as the Cabinet was usurping the role of the commission. There were strong objections to this by the commission and Kenyans in the diaspora. In the end, the commission forced the government to provide funding to enable the commission to allow Kenyans residing in the East African region to register and vote in the election.
( 3 ) “Next time you come to Parliament, you will check your independence in at the door?”
The political class in Parliament, on both sides of the aisle, will always try to cow and intimidate the EMB and its head to achieve their narrow parochial and selfish interests, jointly or severally. They are equal opportunity offenders when it comes to undermining the independence of the EMB. Members of Parliament, unhappy with any decision of the EMB, often sometimes conspire to frustrate the efforts of the EMB in approving proposed electoral forms, regulations or the budget. They can also use their oversight role through the committees to summon the head of the EMB for ‘grilling’ before them in open sessions covered by the media. They then use that opportunity to make political statements, ask all sorts of infantile questions, and make snide and insipid remarks all in an enterprise to score some points against the EMB or its head or both.
The new Constitution of Kenya adopted on August 4, 2010, established the IEBC under Article 88. It established an independent body that was constitutionally more protected than previous electoral commissions like the ECK and IIEC. The chairperson and commissioners were appointed through a competitive, merit-based and transparent process and once appointed enjoyed a security of tenure for their term of office of 6 years (non-renewable). Removal was for cause and under the grounds set out in the Constitution and it required a tribunal. To disband the commission was made difficult for Parliament. The commission was entrenched in the Constitution and it could only be disbanded after a positive vote in a referendum. The referendum was to be conducted by the IEBC.
In November 2011, after many political intrigues and other drama designed to spoil my candidature, I was again appointed to chair the IEBC. (Only two people other than myself applied for the position of chairperson while over 400 applied for commissioner. Re-advertisement for position of chairperson attracted 5 others). The first task of the commission was to undertake boundary delimitation (or redistricting) for 290 constituencies and 47 county assemblies based on criteria listed in the Constitution. The incumbent Members of Parliament had a lot of interest in this exercise and several made attempts to force through their gerrymandering plans and the redrawing of their electoral areas to benefit them.
Though the IEBC had the final authority on the delimitation of boundaries of the electoral areas, it was subject to considering views from the public. The commission published its final report for the 290 constituencies and 1,450 county assembly wards. The report was submitted to Parliament. Members of Parliament, through the committee of legal affairs, summoned the heads of the commission and strongly urged us to accept the proposal by parliament to increase the county assemblies from 1,450 to 1,550. The additional 100 wards were selectively given to areas represented by MPs who were members of the legal affairs committee and other leaders of the House. When the report came back to the IEBC from Parliament, with the proposed changes, the commission rejected them and instead went ahead to gazette the 1,450 county assembly wards.” IEBC defies Parliament”, screamed the newspaper headlines the following day.
I received a call from a fuming chairman of the Parliamentary Committee on Legal Affairs demanding to know why we ignored Parliament’s recommendations. I replied that we considered them but did not agree with them and that on the boundary delimitation issues, we were not bound to follow the Parliament’s proposal. I reiterated the constitutional provision on our independence and then he uttered the following statement, “Next time you come to Parliament you will check your independence in at the door.” This subtle threat was going to pass when the commission presented its budget for the 2013 elections to both the Legal Affairs and Budget committee of Parliament. We were subjected to ridicule by the MPs when we appeared before their committee and they displayed a lot of bad faith and hostility. They alleged that we had presented a bloated budget that was going to fund the most expensive elections in Africa. In effect, they were punishing the commission as revenge for the boundary delimitation issue. Unlike prior years, they conducted the committee hearings in public and with the press in attendance. Out of spite and sheer blooded mindedness, they slushed the election budget in areas that later came to effect the electoral operations. They also amended the Elections Act to take away from the commission the power to make regulations for the conduct of elections. It was made subject to approval of Parliament.
We also received similar, but far worse, treatment, before the Public Accounts Committee, which is chaired by the opposition party by parliamentary tradition. A legitimate function of considering the audited accounts of the commission was turned into an inquiry into the conduct of the elections of 2013 and a fault finding one. They departed from tradition and summoned the accounting officer and all the commissioners to appear separately and answer a wide range of issues that had nothing to do with the audited accounts. It was the worst parliamentary committee that I ever appeared before in my tenure of office. This committee went overboard so much that some commissioners contemplated refusing to appear before it anymore and accept any punishment for the so-called “contempt of Parliament” offence.