IEBC, the house Chebukati put asunder

The electoral commission chairman Wafula Chebukati (centre) with fellow commissioners Prof Abdi Guliye (left) and Mr Molu Boya during a press briefing at the IEBC headquarters in Anniversary Towers in Nairobi on April 20, 2018. PHOTO | ANTHONY OMUYA | NATION MEDIA GROUP

      By Makau Mutua Professor at SUNY Buffalo Law School and Chair of the KHRC.

Only two elections have ever been “free and fair” – reflecting the will of the people – in Kenya. That would be the 1963 and 2002 general elections. All the other elections – and I mean all others – have been shambolic. Even where the balloting was relatively free of illegalities and irregularities, the end result has often been an election that is stolen, or irredeemably compromised.

        Election year in and election year out, voters come out in large numbers to choose their leaders, only to have their spirits murdered at the ballot box. The 2022 election hasn’t been any different. Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati, and a tiny minority of commissioners – Prof Abdi Guliye and Mr Boya Molu – have given the country two horribly fatal elections.

        Mr Chebukati cuts the figure of an inflexible statue. He neither smiles nor exercises the muscles on his face. His walk looks pained and stiff. His demeanour and temperament are mulish. You can never tell whether he says anything with conviction because he doesn’t emote. Prof Guliye, who has been dubbed by some as “Mr Chebukati’s brain”, appears to have a permanent scowl. He’s witty and scrappy, but underneath lies a cold calculating man. I don’t know much about Mr Molu. I think he’s just one of those who follow the leader, no matter over the cliff.

Iron grip

Imagine this trio, out of the seven commissioners, with an exclusive iron grip on the IEBC. I don’t know what makes Mr Chebukati tick. If I were him, I would have resigned after bungling the 2017 presidential election that was nullified by the Supreme Court. But true to his immobile nature, he stuck around.

        In 2022, he appears to have bungled another election, which is once again the subject of cases at the Supreme Court. But rather than exit hanging his head in shame, Mr Chebukati has stuck to his guns, impervious of his sins. Instead, he’s chosen to run the IEBC with his two mates. He’s been taking most decisions to the exclusion of the majority in the commission.

        He’s become the Vladimir Putin of the IEBC. His term mercifully comes to an end in January if he’s not ejected from office before then. The end is nigh. Institutions don’t often function as written on paper. Human beings run them and mould them to create tradition. In Kenya, the institution of the national electoral agency has been a Frankenstein. An ogre, a monster bent on the consumption of humans.

Happy middle

But in democratic countries, important institutions negotiate a happy middle between the role of the leader and the integrity of the institution. This negotiation is supposed to confer legitimacy on the institution so that it can effectively carry out its mandate without being suffocated by the leader. Otherwise, the institution becomes malevolent.

            Kenya’s electoral agencies have never found this “happy middle”. They’ve either been handmaidens of the Executive, or putty in the hands of a dictatorial chair. The result is that Kenya’s electoral agencies exist to subvert the will of the electors. I remember well the 1988 ‘mlolongo’ (queue) elections. In that sad but comical affair, voters were required to line up behind the imagined effigy of their candidates. The polling officer would then take one look and declare that one line – picked arbitrarily and not by its depth of humanity – was for the winning candidate. The matter ended there.

        That’s how politically undesirable candidates were sent to their political deaths. The barometer was usually who was more pro-Kanu than the other. Any whiff of disloyalty sent you packing. No ballot papers, not tallying. No Kiems kits. It’s not even clear whether poll officials checked for IDs.

        I hate to imagine this, but the ‘mlolongo’ elections were probably more transparent than the recent high-tech affair. At least ‘mlolongo’ rigging was done in broad daylight. You were rigged out transparently in the full glare of the hot sun as you watched. In Mr Chebukati’s IEBC, you are rigged out through fake Forms 34A – as alleged in court papers – which are plucked from orbit and replaced on something called a portal. It sounds like a place where lobotomies of the brain are done.

Tech infrastructure

There’s information, which has been presented in court, suggesting that the IEBC tech infrastructure was being run from elsewhere – in a place not called Bomas. Some say abroad. Perhaps we captured the Venezuelans but forgot that they had left the real IEBC from whence they came. It’s sickening. What kind of a patriot takes one of the most important institutions in a country and puts it asunder?

        Was it a design problem of the IEBC that has made a monster out of the IEBC, or has Mr Chebukati simply been a malign force? If so, how can we deal with him, and prevent his facsimile from overtaking over the IEBC? More importantly, how does the country make an example out of the IEBC leadership? Something needs, and must, be done. We cannot simply let them walk away without facing the full weight of the law.

Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School, The State University of New York. @makaumutua.

Source: Sunday Nation tomorrow