Calls for electoral commission to quit are a threat to the rule of law 

A celebrated Roman Catholic saint and one of the most revered lawyers in history, Sir Thomas Moore, was once asked whether he would break the law to get at the devil. The then Lord Chancellor of England replied: “I would give the devil the benefit of the law, for my own safety’s sake.” A similar dilemma faces Kenya today in dealing with the electoral commission.

It is widely agreed that the Electoral Commission of Kenya (ECK) needs to be reconstituted as part of the recommended reform of electoral laws. Unfortunately, members of the ECK enjoy constitutional security of tenure in their offices. Section 41(6) of the Constitution of the Republic of Kenya provides that a member of the commission can only be removed from office if his case has been referred to a tribunal appointed by the President and if it recommends such action.

Public pressures

Security of tenure is granted to protect holders of important constitutional offices from political interference, public pressures and personal whims of the appointing authority. Regardless of the expediency of the moment, the Constitution demands that each case of removal from office be made and tried before the public to ensure that justice is not only done but is also seen to have been done. In the current case of the ECK, section 41(6) appears to be a great inconvenience to many.

Pressure is being brought to bear on the commissioners so that they resign and excuse their critics from having to go through the stringent protection offered by the Constitution.

Politicians have bayed at the commissioners with quit calls and the US has adopted threats and punishment by using travel bans against them. The greatest danger to the rule of law is if they succeed. Much as they will have quickly resolved a political challenge, they will have set a precedent that you can harass holders of constitutionally protected offices to quit their appointments through shouts, threats and punishment.

Secondly, we would have also set the precedent that foreign powers, in this case the US and the European Union who have joined the fray, can threaten holders of constitutional offices in Kenya as we ignorantly cheer them on.

To put this debate into perspective, there are two issues we must consider. Firstly, not all the 22 commissioners may have been involved in the problems that beset the last General Election. Some may even have been critics of their colleagues but could have been of an insufficient number to constitute a majority.

Does it not matter, even before the law, that we could be condemning very innocent persons as we pursue the guilty ones? Does our political expediency of the moment overrule the presumption of innocence? Section 41(6) requires us to put a case against each and every commissioner, personally. If we are unable to put up such a case, what is our justification for condemning them? What case, for instance, does the US have against little known commissioners such as Felista Naetu ole Churie, Joseph Hamisi Dena or Dr Joseph Kipruto Sitonik to justify bundling them out of office with chairman Samuel Kivuitu?

Secondly, the attempt to push ECK commissioners out of office looks like an attempt to make them scapegoats for the ills of the General Election. This is particularly so when it has been found that foreign diplomats attempted to influence the commission in its work and that politicians were involved in inciting the public to engage in violence. The ECK question should not be addressed outside a wholesome solution to the problem.

Foreign powers and politicians want to give the ECK commissioners a bad name, hang them and quickly cover up that unfortunate part of our history. But the commissioners cannot bear full blame for the chaos surrounding the election. And to set them aside as sacrificial lambs would only benefit those who do not wish to see this matter exhaustively investigated.

Very few political party leaders in Kenya would want to see Mr Kivuitu testify and call witnesses to his defence in a constitutional tribunal. Their political careers would not survive that testimony. Neither would some of the foreign diplomats operating locally. It is in their common interest to gag these commissioners and lynch them outside the legal process.

How else could we explain why no critic of the ECK wants to resort to the Constitution in dealing with this matter? If we accuse the commissioners of having broken the law when conducting the last General Election, then we must be the first at upholding the law when dealing with them.

The EU option of giving a “soft landing” to the commissioners so that they resign is also not as innocent as it sounds. The bottom line is bribery. It does not make sense to give financial incentives to a guilty person to leave office. What purpose then does the law regarding removal from office serve? What precedent do we set when we bribe guilty people to leave office rather than make them suffer the humiliation of their guilt? It is particularly distasteful when the financial incentives to resign are being negotiated directly between our commissioners and foreign powers.

Our Freedom

There are critical national institutions which we must never allow foreigners to meddle with. The integrity of our pride and sovereignty as a nation lies in the indigenous sanctity of these institutions. If foreigners can meddle with our electoral commission, they will soon be able to meddle with our elections.

One of the consequences of having provisions in our Constitution for security of tenure is that we shall have to suffer the inconvenience of tribunal hearings to remove the relevant officers. It is the price we have to pay for our freedom. The consequences of ignoring these provisions is that they will soon become irrelevant and the protection they offer inadequate.

A learned judge once said that if a man acted as though the law was “thus and so” and the courts treated him as though the law was “thus and so”, then the law will eventually become “thus and so”.

We need to look beyond the political expediency of this matter to the dangers that may come in the aftermath. For once the ECK critics are successful in harassing the commissioners out of office without going through the Constitution, where will they turn next? The Judiciary? The Controller and Auditor-General?