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The Will of the People: Further Reflections on the Post 2017 Election Evaluation Report and a New Electoral Management Culture

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The reason our ballot papers have security features that are equal to, if not more than, our currency is because of the trust deficit among the electoral stakeholders.

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The Will of the People: Further Reflections on the Post 2017 Election Evaluation Report and a New Electoral Management Culture
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I was privileged to share my thoughts, concerns, hopes and aspirations during the launch of the Post Election Evaluation Report on 12th of February 2018 as a guest speaker particularly because it bears great significance to the Independent Electoral and Boundaries Commission (IEBC), as an institution, and to the nation at large. In the following essay, I share my own insights on an occasion that afforded us an opportunity to reflect and review the journey the IEBC and electoral stakeholders have travelled, so far, in entrenching sound processes in our electoral operations and systems. The expectation that I believed was shared by many, was the IEBC had prepared a report that was candid and honest in its assessment, and that it addressed, comprehensively, the political, legal, administrative, financial and managerial aspects of the 2017 General Elections.

While the Launch of the Post-Election Evaluation report stands as an epilogue in the election cycle, its utility cannot be gainsaid. It is a moment to celebrate successes, acknowledge and appreciate the failures, and identify the pathways to a better future.

The event brought back to mind two instances during my tenure as Chief Justice when I addressed the previous electoral commission. I believe that the words I spoke then ring true today as they did several years back. First was at the swearing-in of IEBC commissioners on 14th November 2011. On that occasion, I spoke at length on the importance of keeping true to the oath of office that Commissioners take. I stated that failure of any election is a failure of an oath betrayed and that:

‘[T]here is no higher crime an individual, an institution, or a group of people can commit than one that subverts the sovereign will of the people, or whether through incompetence, negligence, or design make the expression of that will inarticulate’.

I hope that in the recently launched Report, the IEBC has answered that question, and done it with candour and honesty.

Second was in my Concurring Opinion in Petition 2B of 2014 (commonly referred to as Munya II) where in paragraphs 251-253 I addressed the issue of electoral management where I cautioned that ‘nothing could imperil our democracy more than an electoral agency that is contaminated by bias, infected with incompetence, and afflicted by a virulent virus of minimal public accountability.

‘[T]here is no higher crime an individual, an institution, or a group of people can commit than one that subverts the sovereign will of the people, or whether through incompetence, negligence, or design make the expression of that will inarticulate’.

Arguably, Kenya can do with one or two indolent political parties, but she cannot afford an electoral management agency that exhibits these weaknesses…the IEBC must demonstrate competence, impartiality, fairness, and a remarkably high sense of accountability to the public and the parties who are its primary customers. It must embrace high disclosure standards, and must avoid conduct such as hoarding of information and data that the public has a right to, both as a matter of course, and also as a matter of Article 35 of the Constitution. Materials that are in the possession of IEBC are not private property but rather they are public resources. The IEBC, therefore, must demonstrate an instant readiness to respond to public concerns, whenever these are raised, and to maintain a public accountability posture at all times.

I also hope that in the Evaluation Report, the IEBC has addressed these issues in a forthright and accurate manner.

Whereas these issues will sound familiar to the current IEBC commissioners, they were said long before you came into office. The fact that some of these matters still emerged in the 2017 election, speak to an enduring electoral management culture that is still far from perfect. And it underscores that fact that the country needs to pull together to create and realise an electoral infrastructure and operations that it has absolute faith and confidence in.

Elections are an important pillar of our democracy. The right to vote must not be taken lightly. The duty to protect that vote is also an important democratic imperative. There is an emerging, and a rapidly entrenching notion, that electors or voters no longer decide who their leader are – whether in party primaries or the general election itself. That leaders are decided either by party barons, manipulated electoral management agency, or by the courts. In Africa, there is a widening chasm between voting and counting – an irony of literacy where peasants (most voters) know how to peacefully cast their ballots during the day, but the educated (presiding and returning officers) and technology forget how to count on election night. There is urgency in changing this perception and/or reality by reclaiming and reaffirming public faith in electoral politics. The IEBC has an oversized role in this regard, but only if it conducts itself competently, credibly and fairly.

But IEBC cannot achieve this on its own. It needs an enlightened political leadership and engaged citizenry. There is no doubt that for a truly independent electoral commission to emerge, the political class needs to drop its practice of capturing and enslaving the commission – completely rendering it incapable of discharging its mandate. The political class falsely sees itself an ‘owning’ every space, initiative, or decision in the country, an erroneous ‘political class as sovereign’ notion that precipitates overreach and disregards the constitutive and operational autonomy of independent institutions such as IEBC, and even the Judiciary.

Elections are an important pillar of our democracy. The right to vote must not be taken lightly. The duty to protect that vote is also an important democratic imperative

The Constitution created independent institutions precisely to cure this mischief – as a necessary bulwark against the highly predictable proclivities and mission creep tendencies of the political class. We cannot create independent institutions then deny them that independence through the bullying of the political class. When those institutions fail because of such political infiltration, we turn around and blame them – and disband them only for the silly cycle to begin afresh with another predictable inane result! Our political class must be self-respecting enough to allow independent institutions to work.

But I have also come to learn that constitutional independence does not work on its own. The leadership and membership of these institutions matter much more. IEBC must fight for its independence by rejecting patronage and partisan politics, and through its conduct, comportment and decisions, project and elevate its authority – effectively. The division that the Commission showed in the last election went a long way in sapping away public confidence. The IEBC evaluation report must acknowledge the problem of disunity in the spirit of honest and candid evaluation and make recommendations on how to deal with it in the future.

It is astonishing that the current IEBC assumed office only seven months to the general election. This was reckless and irresponsible on the part of the country. That it even managed to organize the six-tier election, is a mini-miracle. The demand on the Commission to deliver on the general elections within this short period of time must have been huge. Added to Kenya’s unique legal, political and administrative minefields that attend our elections, the pressure must be have been incalculable.

The political class slow-pedaled and mismanaged the transition from the old Commission to the present one. And even today, almost four years before the next election, the Commission is debilitated and cannibalized, and the political class is in lala landevidently unbothered waiting until the last minute to deal with the outstanding issues in the Commission. There is urgency in getting the Commission working properly and in its full capacity.

It is not my desire to dwell on the 2017 General Elections that I trust is adequately covered in the evaluation report. However, I deem it necessary to share some reflections on our electoral processes by highlighting some issues that I think we also need to address.

First, is the manner in which political parties conduct party primaries. Political party primaries have become theatres of the absurd characterized by patronage, violence, ineptitude, rigging. Whereas considerable progress has been made in developing internal party dispute resolution mechanisms these are still not effective as most disputes still find their way into the court system.

We need to remember that Political Parties are institutions that mobilize the people towards capturing political power. This obligates them to entrench democratic values and principles in their internal systems, especially party nominations. I urge all players including, Parliament, Political parties, Registrar of Political Parties and the IEBC to adopt a multisectoral collaborative approach in developing a legal, regulatory and administrative framework that will promote internal party democracy.

Second, there is need for a national conversation on the practicability of critical timelines within the electoral process. For instance, the Constitution compels the Supreme Court to make a determination on a Presidential Petition within 14 days of its filing. From experience, this limited time forces the Court to sit for long hours during proceedings; grant much shorter time for the conduct of important processes like scrutiny and submissions; and limits or even bars parties from preparing adequately for their petitions. The proposal made by the Judiciary Committee on Elections to extend the presidential election petition by another 16 days merits attention.

Third, statutory enactments and amendments by the legislative arm of Government should provide reasonable time for implementation. Undertaking piecemeal legal reforms close to the elections leads to inconsistencies and administrative challenges in the application of the law.   Furthermore, we should consider the possibility of staggering elections. The IEBC conducts polling for six elective positions concurrently. The undertaking is quite daunting and demanding in terms of logistical planning and processing of results. This is a debate that Kenyans need to have.

Fourth, we need to cure the country of the strong scorched-earth electoral culture. We shed too much blood, damage too many properties, steal too many votes, rupture too many friendships, destroy too many institutions, throw too many ethnic insults, worship too many false gods, spend too much money during our electoral contests. Elections have become corrosive and divisive in a manner that hemorrhages the country in an eminently destructive way. They have become existential contests rather than a civil contest between ideas and policy choices. This absolutist view of elections is what has led to the over judicialization of politics and militarization of politics, thereby giving courts (and security agencies) power to determine who the leaders are, and not the citizens. I believe that if the IEBC were to assert its authority and competently and fairly manage the electoral process, the social costs of elections would considerably go down. Similarly, if leaders put national interests first, then the fear of exclusion that drives this desperation would evaporate.

Fifth, the independence of the IEBC can only be guaranteed if its operations are independent of any executive, legislative or foreign control and direction. An institution can only speak of independence if its processes are not prone to manipulation from executive, parliamentary or international misadventure. It is about time we interrogated and stopped the hugely negative influence of the intelligence and security operatives in Kenya’s electoral processes, particularly since 2007. Similarly, the international community also pays an over-sized role in the electoral commission and this needs to be reduced if not eliminated completely. Therefore, to cushion the Commission from financial incapacitation, the Independent Electoral and Boundaries Commission Fund should be operationalized.

Lastly, the role of technology and technology companies in Kenya’s elections also need urgent examination. It has emerged as a contested issue and if the country is not careful, we may hand over the election of our leaders not to voters, parties or courts but to technology and data management companies.

I urge the IEBC Commission to continuously engage stakeholders and the public at large in its processes. The Constitution of Kenya has elevated public participation and inspired citizen vigilance, to the extent that unless harnessed into meaningful engagement, it can be a recipe for constant standoffs and unnecessary legal battles between the IEBC and the various stakeholders in the Electoral Process. This will not only enhance trust among stakeholders but also reduce the cost of conducting elections. The reason our ballot papers have security features that are equal to, if not more than, our currency is because of the trust deficit among the electoral stakeholders.

Lastly, the role of technology and technology companies in Kenya’s elections also need urgent examination. It has emerged as a contested issue and if the country is not careful, we may hand over the election of our leaders not to voters, parties or courts but to technology and data management companies.

I wish the IEBC a productive season as it gears up for the next election cycle that will culminate in the conduct of the 2022 General Elections.

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Dr Willy Mutunga is a public intellectual and former Chief Justice of Kenya.

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Haiti: The Struggle for Democracy, Justice, Reparations and the Black Soul

Only the Haitian people can decide their own future. The dictatorship imposed by former president Jovenel Moïse and its imperialist enablers need to go – and make space for a people’s transition government.

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Haiti: The Struggle for Democracy, Justice, Reparations and the Black Soul
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Haiti is once again going through a profound crisis. Central to this is the struggle against the dictatorship imposed by former president Jovenel Moïse. Since last year Mr. Moise, after decreeing the dismissal of Parliament, has been ruling through decrees, permanently violating Haiti’s constitution. He has refused to leave power after his mandate ended on February 7, 2021, claiming that it ends on February 7 of next year, without any legal basis.

This disregard of the constitution is taking place despite multiple statements by the country’s main judicial bodies, such as the CSPJ (Superior Council of Judicial Power) and the Association of Haitian Lawyers. Numerous religious groups and numerous institutions that are representative of society have also spoken. At this time, there is a strike by the judiciary, which leaves the country without any public body of political power.

At the same time, this institutional crisis is framed in the insecurity that affects practically all sectors of Haitian society. An insecurity expressed through savage repressions of popular mobilizations by the PNH (Haitian National Police), which at the service of the executive power. They have attacked journalists and committed various massacres in poor neighborhoods. Throughout the country, there have been assassinations and arbitrary arrests of opponents.

Most recently, a judge of the High Court was detained under the pretext of promoting an alleged plot against the security of the State and to assassinate the president leading to the illegal and arbitrary revocation of three judges of this Court. This last period has also seen the creation of hundreds of armed groups that spread terror over the entire country and that respond to power, transforming kidnapping into a fairly prosperous industry for these criminals.

The 13 years of military occupation by United Nations troops through MINUSTAH and the operations of prolongation of guardianship through MINUJUSTH and BINUH have aggravated the Haitian crisis. They supported retrograde and undemocratic sectors who, along with gangsters, committed serious crimes against the Haitian people and their fundamental rights.

For this, the people of Haiti deserve a process of justice and reparations. They have paid dearly for the intervention of MINUSTAH: 30 THOUSAND DEAD from cholera transmitted by the soldiers, thousands of women raped, who now raise orphaned children. Nothing has changed in 13 years, more social inequality, poverty, more difficulties for the people. The absence of democracy stays the same.

The poor’s living conditions have worsened dramatically as a result of more than 30 years of neoliberal policies imposed by the International Financial Institutions (IFIs), a severe exchange rate crisis, the freezing of the minimum wage, and inflation above 20% during the last three years.

It should be emphasized that, despite this dramatic situation, the Haitian people remain firm and are constantly mobilizing to prevent the consolidation of a dictatorship by demanding the immediate leave of office by former President Jovenel Moïse.

Taking into account the importance of this struggle and that this dictatorial regime still has the support of imperialist governments such as the United States of America, Canada, France, and international organizations such as the UN, the OAS, and the EU, the IPA calls its members to contribute their full and active solidarity to the struggle of the Haitian people, and to sign this Petition that demands the end of the dictatorship as well as respect for the sovereignty and self-determination of the Haitian people, the establishment of a transition government led by Haitians to launch a process of authentic national reconstruction.

In addition to expressing our solidarity with the Haitian people’s resistance, we call for our organisations to demonstrate in front of the embassies of the imperialist countries and before the United Nations. Only the Haitian people can decide their future. Down with Moise and yes to a people’s transition government, until a constituent is democratically elected.

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Deconstructing the Whiteness of Christ

While many African Christians can only imagine a white Jesus, others have actively promoted a vision of a brown or black Jesus, both in art and in ideology.

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Deconstructing the Whiteness of Christ
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When images of a white preacher and actor going around Kenya playing Jesus turned up on social media in July 2019, people were rightly stunned by the white supremacist undertone of the images. They suggested that Africans were prone to seeing Jesus as white, promoting the white saviour narrative in the process. While it is true that the idea of a white Jesus has been prevalent in African Christianity even without a white actor, and many African Christians and churches still entertain images of Jesus as white because of the missionary legacy, many others have actively promoted a vision of Jesus as brown or black both in art an in ideology.

Images of a brown or black Jesus is as old as Christianity in Africa, especially finding a prominent place in Ethiopian Orthodox Church, which has been in existence for over sixteen hundred years. Eyob Derillo, a librarian at the British Library, recently brought up a steady diet of these images on Twitter. The image of Jesus as black has also been popularised through the artistic project known as Vie de Jesus Mafa (Life of Jesus Mafa) that was conducted in Cameroon.

The most radical expression of Jesus as a black person was however put forth by a young Kongolese woman called Kimpa Vita, who lived in the late seventeenth and early eighteenth century. Through the missionary work of the Portuguese, Kimpa Vita, who was a nganga or medicine woman, became a Christian. She taught that Jesus and his apostles were black and were in fact born in São Salvador, which was the capital of the Kongo at the time. Not only was Jesus transposed from Palestine to São Salvador, Jerusalem, which is a holy site for Christians, was also transposed to São Salvador, so that São Salvador became a holy site. Kimpa Vita was accused of preaching heresy by Portuguese missionaries and burnt at the stake in 1706.

It was not until the 20th century that another movement similar to Vita’s emerged in the Kongo. This younger movement was led by Simon Kimbangu, a preacher who went about healing and raising the dead, portraying himself as an emissary of Jesus. His followers sometimes see him as the Holy Spirit who was to come after Jesus, as prophesied in John 14:16. Just as Kimpa Vita saw São Salvador as the new Jerusalem, Kimbangu’s village of Nkamba became, and still is known as, the new Jerusalem. His followers still flock there for pilgrimage. Kimbangu was accused of threatening Belgian colonial rule and thrown in jail, where he died. Some have complained that Kimbangu seems to have eclipsed Jesus in the imagination of his followers for he is said to have been resurrected from the dead, like Jesus.

Kimbangu’s status among his followers is however similar to that of some of the leaders of what has been described as African Independent Churches or African Initiated Churches (AICs). These churches include the Zionist churches of Southern Africa, among which is the amaNazaretha of Isaiah Shembe. Shembe’s followers see him as a divine figure, similar to Jesus, and rather than going to Jerusalem for pilgrimage, his followers go to the holy city of Ekuphakameni in South Africa. The Cameroonian theologian, Fabien Eboussi Boulaga, in his Christianity Without Fetish, see leaders like Kimbangu and Shembe as doing for their people in our own time what Jesus did for his people in their own time—providing means of healing and deliverance in contexts of grinding oppression. Thus, rather than replacing Jesus, as they are often accused of doing, they are making Jesus relevant to their people. For many Christians in Africa, therefore, Jesus is already brown or black. Other Christians still need to catch up with this development if we are to avoid painful spectacles like the one that took place Kenya.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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In Magufuli’s Shadow: The Stark Choices Facing Tanzania’s New President

One immediate concern is what steps Hassan will take on the pandemic, and whether she will change direction.

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In Magufuli’s Shadow: The Stark Choices Facing Tanzania’s New President
Photo: Flickr/Gospel Kitaa
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The sudden death of Tanzania’s President John Pombe Magufuli has thrown the East African nation into a period of political uncertainty.

Vice-president, Samia Suluhu Hassan, has been sworn in as his successor, making her Tanzania’s first woman president.

The transition is all the more challenging given the major rupture – both political and economic – caused by Magufuli’s presidency. Magufuli, who won a second term in October 2020, dramatically centralised power and pursued an interventionist economic policy agenda. He courted controversy on a number of fronts, most recently, by claiming that Tanzania – contrary to mounting evidence – was Covid-free.

Hassan has called for unity and counselled that now is not the time to look at what has passed but rather to look at what is to come.

Despite the 61-year-old leader’s forward-looking stance, questions remain about how Magufuli’s legacy will shape her time in office.

The authoritarian turn

Magufuli oversaw the marginalisation of opposition parties and a decline in civil liberties. His first term was defined by heightened intimidation and violence against opposition leaders, including disappearances and physical attacks.

Thanks to five years of repression, the October 2020 general elections saw the opposition all but wiped out of elected office. The ruling Chama Cha Mapinduzi now controls all local government councils. It also holds 97% of directly elected legislative seats, up from 73% in 2015.

In addition, media freedom and civil liberties were also restricted. A law passed in 2018 imposed jail terms for questioning the accuracy of official statistics.

But Magufuli’s authoritarian tendencies were not unprecedented in Tanzania. For instance, the rule of his predecessor Jakaya Kikwete was also marred by human rights abuses as well civil society and media repression. Kikwete also cancelled Zanzibar’s 2015 election due to a likely opposition victory.

It remains to be seen whether Hassan will adopt a more liberal approach, loosening restrictions on opposition parties, the media and civil society. Even if she does, the damage will take time to repair. Opposition parties, for instance, may well struggle to regain their strength. Among other setbacks, they have lost almost all local elected representatives – a core element of their organisational infrastructure built up painstakingly over decades.

Centralising power in the party

Another key pillar to Magufuli’s legacy is the centralisation of power within the Chama Cha Mapinduzi.

In the early years under founding president Julius Nyerere, Tanzania’s ruling party was dominated by the president and a hierarchy of appointed state and party officials. But, following economic liberalisation in the 1980s and Nyerere’s retirement from politics, the party became steeped in factional rivalries. These were spurred by new political alliances and an emerging private sector business elite.

This factionalism reached its height under Kikwete amid accusations of widespread corruption. Magufuli’s nomination as party presidential candidate only occurred because the rivalry among these factions left him as the unexpected compromise candidate.

Once in office, though, Magufuli quickly signalled he would be nobody’s puppet. He used his position as ruling party chairman to create a “new” Chama Cha Mapinduzi. This involved breaking with party heavyweights, including Kikwete, suppressing factional organising, and consolidating his own support base.

Magufuli’s new base was a cohort of freshly appointed party officials as well as civil servants and cabinet ministers. His loyalists likened these changes to a revival of Nyerere’s Chama Cha Mapinduzi. But, in our view, the comparison is misleading.

Like Magufuli before her, Hassan will be taking office – and party leadership – without her own political base. She will also have to contend with revived factional manoeuvring as sidelined groups try to regain an upper hand.

Hassan could align with a loyal Magufuli faction, which includes influential figures within the party. But, early indications suggest she intends to follow the advice of “party elders”, notably Kikwete. The former president reportedly attended the party’s most recent central committee meeting on Hassan’s invitation.

Aligning herself with Kikwete will likely lead to the reemergence of the internal factional rivalries that characterised the former president’s tenure.

Implications for economic policy

If president Hassan does continue to take a political steer from Kikwete, one likely outcome is that there will be a change in economic policy. In particular, a return to growth that’s led by a more business-friendly approach to the private sector.

Calls are already being made for such a course of action..

The danger for Hassan, however, is that under Kikwete this model was associated with high levels of corruption and unproductive rent-seeking.

A careful reassessment of the Magufuli era is needed to guide future policymaking.

Magufuli used his control over the ruling party to pursue an ambitious policy agenda. This was also linked to his political project of centralising power.

Although this trend actually began under Kikwete, Magufuli accelelrated a move towards more state-led investment. Under his leadership, both state-owned and, increasingly, military-owned enterprises were offered strategic contracts.

This ambitious programme initially won him praise. But over time, his authoritarian decision-making, mismanagement, and lack of transparency prompted a more critical response.

Many state enterprises remained cash-starved, relied on government financial support, and registered losses.

When the government’s controller and auditor general called for more scrutiny of public finances, his budget was slashed. And he was ultimately forced to retire and replaced by a Magufuli loyalist.

Alongside state investment, the president also sought to discipline private sector actors. Some observers suggest that this led to more productive investment, notably by domestic investors. But others point to renewed crony capitalist ties.

Magufuli’s most high profile corporate battle was against Canadian-owned Barrick Gold and its former subsidiary, Acacia Mining. From the two, he demanded USD$190 billion in tax arrears and a renegotiation of operating terms.

Many saw this resource-nationalist approach as an inspiration and a model for African countries seeking to take greater control of their mineral wealth. But in the end – partly due to externally imposed legal and economic constraints – Magufuli walked back on some of his demands. Instead he opted for cooperation rather than confrontation.

He negotiated a joint venture in which Barrick took a majority stake of 84% and Tanzania the remaining 16%. Key elements of the nationalistic mining legislation passed in 2017 were also reversed.

On the plus side gold overtook tourism as Tanzania’s biggest foreign-exchange earner. In addition, some small-scale miners saw their livelihoods improve. Results were more mixed elsewhere, especially for Tanzanite miners in the country’s north.

Ultimately, Magufuli leaves behind a mixed economic legacy. It combines misdirected authoritarian decision-making with positive efforts to pursue an active industrial policy. Reining in unproductive domestic investors and renegotiating adverse contracts with foreign investors were part of this agenda.

There is a risk, given this complex mix, that Tanzania’s policymakers may learn the wrong lessons from his presidency, leading back to the flawed model existing before.

Significantly, neither Magufuli nor his predecessors managed to achieve more inclusive growth. For this reason poverty levels have remained stubbornly high.

The pandemic and beyond

One immediate concern is what steps Hassan will take on the pandemic, and whether she will change direction.

Whatever she does, the health emergency and associated economic crisis will likely define her presidency. It could indeed define the economic trajectory of the African region in years to come.

Both Kikwete and Magufuli ruled through an economic boom period. Commodity prices were high and access to international finance was fairly easy. This gave them latitude to choose between various development approaches.

If Tanzania reverts to the status quo of the Kikwete years, the risk is a reemergence of rent-seeking but without the same highly favourable economic growth conditions. Indeed, as external conditions worsen, Hassan may find her options far more limited.The Conversation

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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