Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati during a Press briefing at Bomas of Kenya on August 10, 2022.
Makau Mutua Professor at SUNY Buffalo Law School and Chair of the KHRC.What you need to know:
.Chebukati's performance as the head of the IEBC can only be described as dismal and catastrophic.
.The law is clear that Mr Chebukati is only the first among equals in a democratic institution, not an unaccountable overlord.
.The commissioners as a corporate body do the IEBC’s works – by consensus, or a vote of the majority – not by the fiat of the chair.
In illiberal societies, public institutions often create monsters. These are individuals who assume that the public trust invested in them makes them demigods; state factotums who seek power to prosecute agendas and vendettas contrary to the institution’s purposes.
In the past week, we have witnessed the textbook definition of such a functionary. Chairperson Wafula Chebukati of the Independent Electoral and Boundaries Commission (IEBC) has shocked me with his singular obsession to husband – and I use the term advisedly – all the most important powers of the institution. He has done so in total disregard of the Constitution, the laws of Kenya, and the applicable case law. His performance as the head of the IEBC can only be described as dismal and catastrophic. Truly, incredibly sad.
Transition from autocracy
Laws are written for specific purposes to cure or address, specific issues. That’s true of institutions created under particular laws. There’s no law, or institution, that’s created to orbit in space without a social, political or economic anchor. None. But laws are born of historical and local contexts. Importantly, laws don’t exist without a path to their implementation. This is especially in societies that are in the process of transitioning from autocracy to democracy.
Kenya has been in such a transition since the late 1980s. Moving away from an imperial executive and bureaucracy, a rubber legislature, and a captive judiciary, to a freer society.
However, institutions are only as good as the people who run and manage them. A morally decrepit person must never be allowed anywhere near children. A corrupt official must never be given keys to the public purse. A politically greedy manic must not be given executive power. That’s why individuals who haven’t internalised the values of democratic governance must never be allowed to run public institutions.
But what do you do when such people are in short supply, or where cartels have captured public institutions?
Or where a nincompoop finds himself at the head of a public body? I submit that it’s up to the public to eject such a misfit from office. Such an official can do great damage to society. He can precipitate a national meltdown with one action. The IEBC was created in the 2010 Constitution to cure the colossal failures of its predecessors. Some people may be too young to remember the debacles of the Electoral Commission of Kenya (ECK), the predecessor to the IEBC. The ECK was in law, spirit and structure the exact opposite of the IEBC. It was an institution controlled in law and fact by the Executive.
It had no independent existence from the State House. Its main job was to keep Kanu and subsequent regimes in power in perpetuity, especially before term limits. The chairpersons of the ECK were “poodles” of the executive. They, and their fellow commissioners, had no minds, or ideas, of their own. They existed to do the bidding of the president. One remembers with pity the sad spectacle of the last chairperson of the ECK, the late Samuel Kivuitu.
In 2007, the poor fellow disappeared from his office in unclear circumstances only to appear at dusk at State House to swear in President Mwai Kibaki after a stolen election.
We know what happened next. The country exploded in genocidal violence. Only a “Handshake” between ODM’s Raila Odinga and Mr Kibaki stopped Kenya from going the way of Somalia.
A year later, I bumped into Mr Kivuitu and asked him where he had disappeared to before showing up at State House. The wisecracking lawyer said that he had no recollection of the events of that day. My jaw dropped to the floor.
The ECK-Kivuitu problem
The IEBC was created to cure the ECK-Kivuitu problem. To make sure the chair of the electoral body was neither a dictator, nor a poodle of the state.
'Brazen dictator'
I don’t know what else Mr Chekubati is, or isn’t. But I know this – he’s a brazen dictator. The law is clear that Mr Chebukati is only the first among equals in a democratic institution, not an unaccountable overlord. He’s not a king. He has no legal powers to carry out unilateral decisions or to commit the IEBC to his personal commands, or wishes.
The commissioners as a corporate body do the IEBC’s works – by consensus, or a vote of the majority – not by the fiat of the chair. He can’t issue edits. This is especially true in presidential elections, one of the most consequential decisions any public body can make in Kenya. That existential decision can’t be made by Mr Chebukati alone, or with a tiny minority of commissioners.
Such a decision is void and null. It’s unconstitutional and a legal nullity. At least four of the seven commissioners are required by law to make such a decision, which then Mr Chebukati is allowed to communicate to the public.
This week four commissioners rejected Mr Chebukati’s announcement of UDA candidate William Ruto as President-elect. In law, this means Kenya doesn’t have an official of the elections or a President-elect.
Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School. He’s Chair of KHRC. @makaumutua
In illiberal societies, public institutions often create monsters. These are individuals who assume that the public trust invested in them makes them demigods; state factotums who seek power to prosecute agendas and vendettas contrary to the institution’s purposes.
In the past week, we have witnessed the textbook definition of such a functionary. Chairperson Wafula Chebukati of the Independent Electoral and Boundaries Commission (IEBC) has shocked me with his singular obsession to husband – and I use the term advisedly – all the most important powers of the institution. He has done so in total disregard of the Constitution, the laws of Kenya, and the applicable case law. His performance as the head of the IEBC can only be described as dismal and catastrophic. Truly, incredibly sad.
Transition from autocracy
Laws are written for specific purposes to cure or address, specific issues. That’s true of institutions created under particular laws. There’s no law, or institution, that’s created to orbit in space without a social, political or economic anchor. None. But laws are born of historical and local contexts. Importantly, laws don’t exist without a path to their implementation. This is especially in societies that are in the process of transitioning from autocracy to democracy.
Kenya has been in such a transition since the late 1980s. Moving away from an imperial executive and bureaucracy, a rubber legislature, and a captive judiciary, to a freer society.
However, institutions are only as good as the people who run and manage them. A morally decrepit person must never be allowed anywhere near children. A corrupt official must never be given keys to the public purse. A politically greedy manic must not be given executive power. That’s why individuals who haven’t internalised the values of democratic governance must never be allowed to run public institutions.
But what do you do when such people are in short supply, or where cartels have captured public institutions?
Or where a nincompoop finds himself at the head of a public body? I submit that it’s up to the public to eject such a misfit from office. Such an official can do great damage to society. He can precipitate a national meltdown with one action. The IEBC was created in the 2010 Constitution to cure the colossal failures of its predecessors. Some people may be too young to remember the debacles of the Electoral Commission of Kenya (ECK), the predecessor to the IEBC. The ECK was in law, spirit and structure the exact opposite of the IEBC. It was an institution controlled in law and fact by the Executive.
It had no independent existence from the State House. Its main job was to keep Kanu and subsequent regimes in power in perpetuity, especially before term limits. The chairpersons of the ECK were “poodles” of the executive. They, and their fellow commissioners, had no minds, or ideas, of their own. They existed to do the bidding of the president. One remembers with pity the sad spectacle of the last chairperson of the ECK, the late Samuel Kivuitu.
In 2007, the poor fellow disappeared from his office in unclear circumstances only to appear at dusk at State House to swear in President Mwai Kibaki after a stolen election.
We know what happened next. The country exploded in genocidal violence. Only a “Handshake” between ODM’s Raila Odinga and Mr Kibaki stopped Kenya from going the way of Somalia.
A year later, I bumped into Mr Kivuitu and asked him where he had disappeared to before showing up at State House. The wisecracking lawyer said that he had no recollection of the events of that day. My jaw dropped to the floor.
The ECK-Kivuitu problem
The IEBC was created to cure the ECK-Kivuitu problem. To make sure the chair of the electoral body was neither a dictator, nor a poodle of the state.
'Brazen dictator'
I don’t know what else Mr Chekubati is, or isn’t. But I know this – he’s a brazen dictator. The law is clear that Mr Chebukati is only the first among equals in a democratic institution, not an unaccountable overlord. He’s not a king. He has no legal powers to carry out unilateral decisions or to commit the IEBC to his personal commands, or wishes.
The commissioners as a corporate body do the IEBC’s works – by consensus, or a vote of the majority – not by the fiat of the chair. He can’t issue edits. This is especially true in presidential elections, one of the most consequential decisions any public body can make in Kenya. That existential decision can’t be made by Mr Chebukati alone, or with a tiny minority of commissioners.
Such a decision is void and null. It’s unconstitutional and a legal nullity. At least four of the seven commissioners are required by law to make such a decision, which then Mr Chebukati is allowed to communicate to the public.
This week four commissioners rejected Mr Chebukati’s announcement of UDA candidate William Ruto as President-elect. In law, this means Kenya doesn’t have an official of the elections or a President-elect.
Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School. He’s Chair of KHRC. @makaumutua
Source: Sunday Nation tomorrow
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