Referendum and new Constitution impossible by 2012

By Peter M. Munene, Nairobi

At the current pace, a referendum, new constitution, a complete review of constituency boundaries and new constituencies before end of 2009 or 2012, is a mere pipe-dream. Kenyan legislators did not know what they were up against, when they passed the Constitution of Kenya Amendment Bill 2008 en-masse.

Ahmed Issack. Chairman of the Independent Interim Electoral Commission

Ahmed Issack Hassan. Chairman of the Independent Interim Electoral Commission. Picture by the Standard

With the disbanding of the Electoral Commission of Kenya (E.C.K), two bodies have been formed: namely, the Interim Independent Electoral Commission (IIEC) and Interim Independent Boundaries Review Commission (IIBRC). The two bodies major tasks are: compilation of a new voter register, carrying out a referendum for a new constitution, conducting elections, drawing up administrative (districts), constituencies and local authorities boundaries, creating-by way of proposals to Parliament, districts, constituencies and local authorities (electoral areas).

One of the urgent tasks is delivery of a new constitution before the end this year. Key blocks stand in the way of this process: One, the personnel that will be recruited and in particular the Secretariat staff which actually does the spade work, will have no prior experience in carrying out a referendum.

In Kenya there is no other body that has been carrying elections where a pool of experienced and trained personnel can be sourced. Giving electoral greenhorns such a mammoth responsibility is simply courting disaster. They will not have the capacity, unless we source the manpower from Electoral Commissions of other countries.

Two, politicians are still divided on what type of constitution is suitable for Kenya. Is it parliamentary or presidential system? Majimbo; based on tribes or administrative regions? The list is endless. Before these political persuasions are addressed and harmonized, a draft constitution to be subjected to a referendum. This consensus cannot be achieved in the next twenty-four months (the life span of these interim bodies). And as the politicians drag their feet, the 2012 Elections will be beckoning. Eventually, interest in a new constitution will wane to be replaced by angling and jostling for strategic positions for the 2012 General Elections.

Three, mass voter registration is mandatory as the current voter register with 14 million voters, has been invalidated by the disbandment of E.C.K. In any case, a top politician was recently quoted referring to the register as “takataka” (rubbish). “It has deceased voters – which the former Commission Chairman, Kivuitu, should go home with after E.C.K was disbanded!” said the politician.

For the referendum to pass the credibility test, the registered voters should be more than 15 million. This represents at least 50% Kenya’s population of over 30 million. Achieving such a registration threshold cannot happen within one year due to voter apathy, logistics, complexity of the undertaking and the time required for planning. But if we must have the referendum in 2009 with a new voter register, then the Constitution will be decided by a paltry minority; a sad scenario indeed. Therefore, participation by all or majority of Kenyans during the referendum should be of paramount importance.

Four, before registration of the envisaged magnitude is contemplated or implemented, the Interim Independent Boundaries Review Commission (IIBRC) must first complete its work. The tragedy is in thinking that the two bodies can work simultaneously. Absolutely not! Re-drawing (harmonizing) administrative and electoral boundaries and creating new constituencies and electoral areas, will necessitate change of the current registration codes; namely constituency, local authority and polling station numbers. The same changes will have to be effected in the computer software that will be used to compile the registers, which is a lengthy process. If voters are registered before constituency and local authority boundaries are established, some registers and voter cards will have to be amended to reflect the correct particulars of the voter – a waste of time and scarce resources.

The Interim Independent Boundaries Review Commission(IIBRC) mandated with drawing of boundaries, creation of new districts, constituencies and local authorities, faces a plethora of almost insurmountable gridlocks which cannot be solved in the next one or two years. The current constitution does not allow for more than 210 constituencies. For new constituencies to be in place, the relevant constitutional clause has to be amended. When will this happen and what will be the maximum? What if the Commission proposes more than the stipulated number?

Political interest will feature quite prominently in determining the number of constituencies, where to create them and where the boundaries will lie. Most politicians will be looking at how all these will be of advantage to them in the 2012 General Elections and if the politician(s) will not be satisfied, this is one of the mostly likely factors that will stall the process.

There are ongoing boundaries conflicts across Kenya, where administrative, ancestral and electoral boundaries conflict. These differences cannot be solved overnight. Worse too, during the re-drawing and creating of new electoral areas, more conflicts will crop-up and old rivalries will be ignited either by ancestral/tribal or political interests. Once again, the process will be bogged down. Two years is quite inadequate for completion of such a complicated process.

It still begs the question why the two institutions were mandated with such sensitive, mammoth and onerous tasks on an interim basis. They should be permanent to instill a sense of belonging and thus dedication in those who will be engaged by them. Alternatively, they will keep on asking for extensions to complete their assignments.

E-mail:maithamugucu@gmail.com

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