Electoral Commission Chair Warned Against Repeating Mistakes of 2007 Polls

Senior Counsel Philip Murgor has issued a stark warning to the Independent Electoral and Boundaries Commission (IEBC) Chairperson, Erastus Edung Ethekon, emphasizing the paramount responsibility of the commission's leadership in safeguarding Kenya's electoral integrity. This caution is deeply rooted in the traumatic experience of the 2007 post-election violence, which underscored the devastating consequences of a flawed electoral process. The article delves into the legal framework governing the IEBC, the historical context of electoral reforms, and the critical role of the Chairperson and commissioners in upholding the constitutional mandate for free, fair, and credible elections, urging proactive measures to prevent a recurrence of past mistakes and rebuild public trust.

Kenya's electoral history is marked by periods of profound challenge, none more so than the 2007 post-election violence (PEV), which served as a stark reminder of the fragility of democratic processes when electoral integrity is compromised. Against this backdrop, Senior Counsel Philip Murgor's recent caution to the Independent Electoral and Boundaries Commission (IEBC) Chairperson, Erastus Edung Ethekon, carries significant weight. Murgor's warning, emphasizing that the ultimate responsibility for safeguarding Kenya's electoral integrity rests with the commission's leadership, highlights an enduring concern within the nation's political and legal landscape.

The 2007 general elections in Kenya were fiercely disputed, leading to widespread violence that resulted in over 1,100 deaths and the displacement of hundreds of thousands. The crisis was largely attributed to a flawed electoral process, including allegations of widespread bribery, vote buying, intimidation, ballot stuffing, and incompetence from the then-Electoral Commission of Kenya (ECK). In the aftermath, the Kenyan National Accord and Reconciliation Act was brokered, leading to the establishment of the Independent Review Commission (IREC), commonly known as the Kriegler Commission. The Kriegler Commission's report identified significant weaknesses in the electoral legal framework, the ECK's structure, and its operational procedures, recommending comprehensive reforms.

The Independent Electoral and Boundaries Commission (IEBC) was established in 2011 under Article 88 of the Constitution of Kenya, 2010, as an independent regulatory agency tasked with conducting or supervising referenda and elections. This constitutional mandate is further operationalized by the Independent Electoral and Boundaries Commission Act, 2011 (No. 9 of 2011), and the Elections Act, 2011 (No. 24 of 2011), which collectively provide the legal framework for electoral processes. The IEBC's functions include continuous voter registration, revision of the voter roll, delimitation of electoral units, regulation of political party nominations, voter education, and the settlement of pre-election disputes.

The role of the IEBC Chairperson, currently Erastus Edung Ethekon, is pivotal. While the Chairperson is the head of the Commission, the IEBC operates on the principle of collective responsibility, with decisions made by a majority of the commissioners. However, Article 138(3)(c) and (10) of the Constitution specifically tasks the IEBC with tallying, verifying, and declaring presidential election results, with the Chairperson declaring the results on behalf of the Commission. This distinction has been a source of contention in past elections, notably in the 2022 presidential election petition, where a split among commissioners regarding the final declaration highlighted the complexities of this collective-yet-individual responsibility.

Electoral integrity, as enshrined in Article 81 of the Constitution, demands that elections be free, fair, transparent, and accurate. To achieve this, the Elections Act, 2011, mandates the use of technology, such as biometric voter registration, electronic voter identification, and a results transmission system, under Section 44. The implementation and reliability of these technologies have been critical points of litigation in previous presidential election petitions, including the landmark 2013 and 2017 cases before the Supreme Court of Kenya. The Supreme Court's nullification of the 2017 presidential election results, citing irregularities and illegalities in the transmission of results, underscored the judiciary's role as a crucial arbiter of electoral disputes and a guardian of constitutional principles.

Despite significant reforms since 2007, challenges persist. These include concerns over political interference, the late enactment of electoral laws, and the erosion of public trust in the commission. The Kriegler Commission had recommended that electoral laws be finalized at least two years before a general election to avoid last-minute changes that can undermine preparedness and trust. The ongoing scrutiny of the IEBC's operations and the conduct of its leadership reflects a national yearning for an electoral body that is not only independent and impartial but also perceived as such by all stakeholders. The Chief Justice, Martha Koome, during the swearing-in of the current IEBC commissioners, emphasized that the public expects the Commission to be, and be seen to be, independent, impartial, neutral, efficient, and professional.

The caution issued to IEBC Chairperson Erastus Edung Ethekon serves as a timely reminder of the profound legal and societal responsibility vested in the commission. The lessons from the 2007 post-election violence and subsequent electoral disputes underscore that electoral integrity is not merely a procedural matter but a cornerstone of national peace and stability. For legal practitioners, this highlights the ongoing importance of understanding Kenya's evolving electoral laws, participating in electoral observation, and preparing for potential election petitions, which remain a critical mechanism for dispute resolution and upholding the rule of law. The IEBC's adherence to its constitutional mandate, transparency in its operations, and demonstrable impartiality will be crucial in rebuilding public confidence and ensuring that future elections genuinely reflect the will of the Kenyan people. All stakeholders, including the legal fraternity, must remain vigilant and actively engage to fortify Kenya's democratic institutions and prevent a relapse into past electoral crises.