SHOULD A CARETAKER GOVERNMENT BE THE LAW IN KENYA?

MR. SAMUEL KIVUITU

MR. SAMUEL KIVUITU

By JERRY JAKONGANGA
WASHINGTON, DC- The short answer is, yes. Absolutely. Why?

We will let the main players in two institutions- the electoral commission and the presidency- now and in the past, answer the question.

Let us begin with the Electoral Commission of Kenya (ECK), which was headed by the late Samuel Kivuitu.

When asked in an interview with The Standard on January 3, 2008, who won the 2007 presidential election, although he pronounced Mr. Mwai Kibaki the winner, Mr. Kivuitu flatly replied “I don’t know.”

Samuel Kivuitu replaced Zacchaeus Chesoni to head the Commission that oversaw the 1997 elections, the 2005 Constitutional Referendum and the infamous 2007 General Election.

Mr. Isaac Hassan- who took over from Mr. Kivuitu-admitted, three months after the 2013 general election, that there were ‘serious technology failures’ in that election.

Such technology failures, Mr. Hassan agreed, forced the commission to use print outs of voter registration, which were subject to manipulation.

The IEBC chair also conceded that electronic transmissions did not work as expected.

But what, exactly, explains the nation’s culture of bungled elections?

Is it a failure of technology, or is there something more willful at work here?

Put another way, is the IEBC independent?

Before we make remarks about these questions, let us look at a few public pronouncements around this issue.

Speaking in Machakos County on July 5, 2017, Mr. Kenyatta-in reference to the NASA coalition leaders- stated that “they were in Government when we competed against them in the 2013 polls. Every month we were being flown to attend ICC cases. Do you want to tell me that now that we are in Government and they are out, they will beat us? No way.”

Think about that for a moment.

What is Mr. Kenyatta, who had his co-president standing right next to him, really saying?

Yes, companion president. Mr. Ruto frequently speaks with more authority than the president.

He is clearly auditioning for the position in 2022, and quite often acts as if he is already there, and Mr. Kenyatta is Mr. Ruto’s Deputy.

Both Mr. Kenyatta and his Deputy have reminded Kenyans ad nauseum that the latter is the main contender for 2022.

That may be fine if it is simply an expression of optimism. However, an inherent cocksureness, which we find very disturbing, exists in such public pronouncements.

Anyway, we digress.

The most recent public disclosure of overt government pressure on the IEBC was made by Mr. Wafula Chebukati, one week before the fresh election which occurred on October 26, 2017.

What is the bottom line?


The bottom line is that the IEBC is not, and will never be, independent if a sitting president who has no regard for the rule of law is seeking a second term in office.

So, what must be done to prevent the president from using the powers of his office to manipulate the IEBC, as well as threaten his opponents?

This question must be answered completely, and become settled law, to evolve a level playing field in Kenyan presidential elections.

Until this is done, Kenya will be on edge every election cycle, as it is today, and the country may eventually disintegrate into something no one would ever be able to recognize.

We have a solution. It may sound simplistic, even farfetched.

But we believe this will work.

Here it is.

The office of the president must become vacant for at least six months, but no more than twelve months, between five-year election cycles.

During that transition period a constitutionally established caretaker government should be in place to run the affairs of state, free from interference and manipulation by those running for the nation’s presidency.

Mr. Kibaki exploited the authority of his office to put pressure on Mr. Samuel Kivuitu in 2007, and Isaac Hassan in 2013.

Because of the benefits of the powers of his office, Mr. Kibaki was the conduit for his godson, Mr. Kenyatta, to enter Statehouse and secure the former’s legacy.

Mr. Uhuru Kenyatta and William Ruto were, at this time, indicted for crimes against humanity by the ICC over post-election violence of 2007.

So, Mr. Kibaki used the powers of his office to virtually guarantee “victory” for Mr. Kenyatta in 2013, both to enable the latter to fight off the ICC, and to secure the latter’s legacy.

What does all this mean, with regards to what is happening in Kenya today?

Well, we have reported what the president and his deputy, and the past three IEBC Commissioners, have confessed.

But what have they done? In other words, what do their actions tell us?

Here are a few examples.

Mr. Kenyatta threatened to “revisit” and “fix” the Supreme Court, following the annulment of his “victory” on August 8, 2017.

Could his opponent, PM Raila Odinga issue similar threats? Absolutely not.

Why?

Because he did not have the powers of the office of the president to carry out the threats.

There were many other government threats, and actual use of force, such as the invasion of Mr. Maina Wanjigi’s home by the so-called “flying squad.”

Government agents’ violation of a private citizen’s rights, as shown above, would have been impossible if Mr. Kenyatta did not wield the powers of his office.

The behavior continued despite PM Raila Odinga’s arrival at Mr. Wanjigi’s home with a court order, signed by a judge, requiring the police to stop.

On top of it, the Mr. Odinga was reportedly temporarily detained at the scene!

This is an unpardonable abuse of power that would have been unavailable to the president if the constitutional amendment we are proposing here was in place.

It is the same abuse of power that is being used to usurp the independence of the IEBC and the judiciary.

One IEBC Commissioner, Ms. Roselyn Akombe, fled the country and resigned from the safety of New York, citing threats to her life, because she would not submit to pressure from Statehouse.

Mr. Chebukati, who did not have the privilege of dual citizenship, must have been given offers he could not refuse, by Statehouse.

This means, “you do what I want, or you die.”

Because he swore never to allow elections to be rigged under his watch, ICT expert, Mr. Chris Msando, was strangled to death just one week before the August 8, 2017 election.

This is despite several reports he filed with the police regarding threats to his life, for which no action was taken.

What are we saying?

We are saying that no presidential candidate in Kenya should be allowed again, ever, to be occupying the office they are running for.

Because they have shown that they lack seriously in discipline and humility, in using the powers of that office.

Statehouse, between election cycles, must be occupied by persons other than those running for it.

A transitional authority, for six months to a year, until a new president is elected and sworn in, must be constitutionally established to run the affairs of State.

Mr. Ruto saw what President Kibaki did for Mr. Kenyatta, and is counting on the latter to do the same thing all previous presidents have done, especially since 2007, namely to use the powers of incumbency to prop up unpopular successors.

If Kenya survives the current crisis, the constitution must be amended to entrench a transitional period, where candidates for president have no powers of the office they are seeking.

This will give IEBC the independence it needs to run a credible election, free, fair, and verifiable, according to the 2010 constitution, free from pressure from unscrupulous incumbents.

It will eliminate the ability of one candidate to have undue advantage over opponents, and remove the tendency to terrorize opponents and Kenyans, with police and other instruments of coercion.

This will also make the Supreme Court’s intervention unnecessary, because there will be few or no disputes, and a peaceful transfer of power in Kenya, like other democracies, will be more likely.

Posted by on November 26, 2017. Filed under Headlines,Opinion,Politics. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.

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