Currently browsing '2012 Elections'

On The Minimum Education Requirement for Elective Posts

Posted by on 4th October 2011

Categories: 2012 Elections

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

The Election Act, which governs the conduct of elections, is one of a slew of bills passed in late August this year. The Act has provisions in it that effectively bar candidates without a post-high school diploma or degree from running for elective positions.

Article 22 (1) (b) states ‘a person may be nominated as a candidate for election under this Act only if that person holds a post secondary school qualification.’ Article 22 (2) states ‘a person may be nominated as a candidate for election as President, Deputy President, county governor or deputy county governor only if the person is a holder of a degree from a university recognised in Kenya’.

This week two petitioners have received permission to file a high court case against the Attorney General, the Minister of Justice, and the yet to be formed Independent Electoral and Boundaries Commission to have the provisions requiring candidates standing for elective positions to have post secondary school qualifications suspended and eventually removed from the Elections Act.

The basis of their case is that the provisions on minimum educational requirements are discriminatory. That the provisions fail to take into account injustices and structural inequalities that have left many in the rural areas educationally disadvantaged. The petitioners claim that it is unfair for the government to enact a law that places a minimum educational requirement on prospective election candidates without providing corresponding facilities to give said education.

Mithika Linturi, MP for Igembe South constituency, made a similar argument in an article he wrote in the one of the papers last week. In the article he states the provisions on minimum educational requirement for prospective election candidates are ‘manifestly unreasonable’ and ‘severely curtail the democratic rights and freedoms of Kenyans to elect leaders of their choice.’  He also states that the provisions are in breach of the constitutional principle of equality articulated in Article 10 of constitution. He also made the argument that good leadership is not the preserve of the educated or learned, stating “I know many good and effective leaders serving Kenyans but who never schooled beyond Form Four.”

What level of education do you expect your parliamentary candidate to have? Should they be educated above a high school? Or is a high school diploma enough? Should having at least a Bachelors degree from a recognised university be a prerequisite to stand for an elective posts?

IDPs To Vote or Not to Vote 2012

Posted by on 29th September 2011

Categories: 2012 Elections

By  Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

A story in one of today’s papers states that Lari MP David Njuguna has advised IDPs not to vote in the 2012 election unless the government settles them by Christmas.  According to the article, he said the government was only concerned about the welfare of politicians.  The MP said the IDPs are living under harsh conditions while others are yet to come to terms with the loss of their beloved ones lost during the post election violence.  He added that the IDPs are also starving because of the high cost of living, “These people are suffering and starving and living in deplorable conditions with their children. Education for their children is also at stake.”’

While I do agree with the fact that government is wrong in its failure to resettle the IDPs almost four years on, and that IDPs suffer disproportionately because of the governments failure, I disagree with proposal that the IDPs should demonstrate their disapproval of the government’s failure to resettle them by not voting in the upcoming election. In fact I think their vote is the strongest participatory tool that the IDPs have, so far protests, and lobby groups, though they have done an admirable job, seem to have had little effect with regards to resettlement. With their vote IDPs can signal their disapproval of the fact that government has done little to resettle them.

If the IDPs do give up their right to vote in the 2012 election, how else will they hold their parliamentary representatives accountable, how else will they signal their desire for change?

Amendments To The Constitution, Your Thoughts?

Posted by on 23rd September 2011

Categories: 2012 Elections Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Who would have thought amendments would come this soon?  Barely a year after the constitution was passed there are two possible points of amendment on the table.

I was at a civil society meeting yesterday where the proposals to amend the constitution to facilitate realisation 2/3-gender rule in Article 81 (b) of constitution, and the proposed postponement of the next election were discussed extensively.

On implementation of the not more the 2/3 of either gender rule there were 2 divergent opinions. The first, that there was no way that requirement of Article 81 (b) could be met without a constitutional amendment, and, therefore,  requisite amendments should be made to the constitution to ensure that the 2/3 threshold is met.

The second , no amendments to the constitution should be made with regards to realisation of 2/3 gender. The 2/3 gender rule an aspirational and progressive one, to be realised over time through the creation of an enabling environment therefore no amendment is needed. What is needed is a levelling of the playing field for both genders running for elective positions. Furthermore an amendment to the constitution at this early day would open the gateway for amendments made for political expediency.

On the proposal by cabinet to have the date of the election changed from a date in August 2012 to a date in December 2012, a consensus was reached to wait for the Supreme Court opinion on the matter.

Views on the importance of date of the next general election varied from – the date of the election is not as important as people who are elected, to the view that the constitutional provision on the election date should be given the simplest reading, and the intention of the constitution followed by having the next elections in the 2nd week of August 2012. Some argued that the cabinet was being disingenuous in its reasons for its proposal to have the election in December, and all that was needed for an election to be held in August 2012 was political will and not an amendment to the constitution.

One of the panellists, a CIC commissioner, made the very good point that if any amendments to the constitution were to be made, the process of amendment should be consultative, with 100% public participation. Before any constitutional amendments are made there should be a broad consensus on the amendment by the citizens. Finally, any amendments made to the constitution should be made with the intention effect implementation rather than to erode gains.

What are your thoughts on amendments to the constitution, and what conditions would place for amendment if any?

On leadership

Posted by on 21st August 2011

Categories: 2012 Elections Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Many people aspire to hold leadership positions and with the promulgation of the
constitution there is no shortage of positions that a qualified Kenyan can vie for. In
fact one can hardly throw a stone without hitting an ongoing recruitment process for
constitutionally created positions; whether its for the Attorney General, the Auditor
General and Deputy, the Judicial Vetting Board, the Independent Electoral Boundaries
Commission or any of the other 11 independent bodies to be established under the
new constitution.  To add to the appointive positions, whether premature or not, there
are ongoing campaigns for the myriad of elective positions in the next general election
president, Member of Parliament, senator, governor etc.

So while our some of our current leaders seem to embroiled one corruption scandal
after the other, bicker over devolution issues, who will control what funds in the devolved
system, whether or not to pay their constitutionally sanctioned taxes, threaten chiefs
who dare to give reports of famine/drought related deaths. All the while simultaneously
careening speedily towards missing the deadline for the passage urgent bills.

Almost one year since the promulgation of the constitution, less then a year till the next
general election and in light of the ongoing establishment of constitutional bodies now
seems as good a time as any to review the qualities we expect of our leaders whether
appointed or elected.

I think that all Kenyans expect that state officers acknowledge that the authority
assigned them is a public trust that vests in the State officer the responsibility to serve
the people, rather than the power to rule. That the authority is to be exercised in a
manner that is consistent with the purposes and objects of the constitution, and in a
manner that demonstrates respect for the people and brings honour to the nation and
dignity to the office; and promotes public confidence in the integrity of the office. We
also expect they abide by leadership and integrity principles of personal integrity,
competence and suitability objectivity and impartiality in decision making, not
influenced by nepotism, favouritism, other improper motives or corrupt practices;
selfless service based solely on the public interest, and accountability to the public
for decisions and actions; and commitment in service to the people. And no I didn’t
make this up this and a longer list is contained in article 73 of the constitution.

While the electorate are partly to blame for the state of affairs where leadership is
concerned we voted for them, two things are true, this is a new dispensation and things
are definitely changing, if not among the leaders then certainly among the electorate.

12 Constitutional Bills to pass in 2 weeks, how did we get here?

Posted by on 14th August 2011

Categories: 2012 Elections Bills Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

How did we get to this point?  The point where Parliament has just shy of two weeks to pass 12 constitutional bills! When the constitution was promulgated in August last year it was evident that its implementation would require the enactment of a multiplicity of complex legislation.

It seems, to me at least, that all provisions were made to ensure that transition from the old dispensation to the new dispensation was a smooth as possible. The new constitution staggered the deadlines for the enactment of all the required legislation according to urgency. The constitution also set out clear time lines for enactment of said laws. It also broadly outlined the manner in which the transition was to be managed and new laws passed in the transitional and consequential clauses in the 5th and 6th Schedule. Two new bodies, a parliamentary select committee, the Constitutional Implementation Oversight Committee, and an independent commission, the Commission for the Implementation of the Constitution, were formed to oversee the transition.

Yet here we are, so far only the Vetting of Judges and Magistrates Bill, the Judicial Service Bill, Independent Electoral Boundaries Commission Bill, The Salaries and Remuneration Commission Bill, and The Supreme Court Bill have been passed. However still pending is the enactment of legislation of on:

  1. Citizenship (Article 18)
  2. Kenya National Human Rights and Equality Commission (Article 59)
  3. Ethics and Anti-corruption commission
  4. Elections (Article 82)
  5. Electoral disputes (Article 87)
  6. Political Parties (Article 92)
  7. Urban areas and cities (Article 183)
  8. Contingencies Fund (Article 208)
  9. Loan guarantees by national government (Article 213)
  10. Revenue Allocation Commission
  11. Commission on Administration of Justice
  12. Ratification of Treaties

The passing of a bill of does not happen overnight. Before a bill becomes law has to presented before parliament, go through a first reading, followed by a second reading, a committee stage and third reading. Each stage has a purpose the rigor of each stage has implications for quality of the bill. A glance at the bill tracker on parliament’s webpage, updated as recently 8th August, shows that some of this legislation has not been even been presented, and the few bills that have been presented are somewhere between the first reading and the second reading (as a side note is it really necessary for all the bills to be separate pieces of legislation?)

Seriously, what are the chances of parliament meeting the constitutional deadlines for the enactment of the requisite laws? And even if parliament does meet the constitutional deadlines what are the implications of the trying to pass this amount of legislation in two weeks on the quality of the laws? And what are the implications on the constitutional requirement for public participation in the making of laws (Article 118)?

IEBC Selection panel

Posted by on 12th August 2011

Categories: 2012 Elections

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

On Monday this week the country’s new independent electoral and boundaries commission selection 7 member panel was sworn in. In case you missed it the panel is made up of Ekuru Aukot (Chairman), Prof. Marion Mutugi (Vice Chair) Justice Isaac Lenaola, Mwanyengela Ngali, Ms. Rosa Buyu, Ms. Irene Keino and Ms Sophie Moturi.

So what next? According to the Independent Electoral Boundaries Commission Act 2011 advert inviting qualified Kenyans to apply for the positions, and publishing of the names of the all the applicants within the next seven days. The selection panel will then consider the applications, shortlist and interview the selected applicants. The Selection Panel will select three persons for the position of chairperson, and thirteen for positions as commissioners. The panel will then forward the names to the President and Prime Minister, who will then consult, and nominate one of the persons as the chairperson, and eight as a members of the commission. The President will then forward his list of nominees to the National Assembly for vetting and approval.

A parliamentary committee will within 14 days of receiving the names consider the nominees and make recommendations to Parliament with regard to the nominees. The National Assembly will within 14 days of its next seating consider the nominations and make a decision on whether to reject or approve the nominees. If the nominees are approved within seven days of the approval the Speaker will forward the names to the President for appointment. If the any of the nominees is rejected the Speaker will inform the President, who will within 14 days of the rejection, submit a new nominee from the panels list to the national assembly. If any of the subsequent nominees are rejected by parliament, the selection panel can put forward a name from among the shortlisted candidates.

In theory the process is pretty clear and straightforward, and should be carried out expeditiously. However in reality it’s likely the establishment of the Independent Electoral and Boundaries Commission (IEBC) will be filled with the usual political skulduggery.  Constituting the Selection Panel so late in the day, represents the first hurdle in the panels work, and means constitutional deadline for the establishment of the IEBC (one year after the constitution’s promulgation (see sixth schedule, section 29 (1) of the new constitution) is unlikely to be met but who knows…in any event we’ll be watching.

CIC Commissioners Salaries

Posted by on 18th July 2011

Categories: 2012 Elections Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa

‘The government is not in support of the exorbitant figure of Sh1.3 million per month for the Chair of the Commission for the Implementation of the Constitution (CIC), Sh1.17 million for the Vice Chair and 1.14 million for the Commissioners. This translates to Sh10.4 million per month, for the commissioners alone, these rates are not only above normal for other state officials but unsustainable.”  Dr Alfred Mutua, the government spokesperson, said in an official statement following the government’s rejection of the salary structure for CIC commissioners proposed by the Public Service Commission (PSC).

The salary of CIC commissioners was the result of a negotiation between the Treasury, the PSC and the CIC in early May in accordance with Article 17 of the Commission for the Implementation of the Constitution Act 2010 which states: ‘Salaries and allowances payable to…. the chairperson and the members [of the CIC] shall, pending the establishment of the Salaries and Remuneration Commission, be determined by the Public Service Commission in consultation with the Treasury.’   Though the government has rejected the proposed salary structure the Commissioners of the CIC have argued that the amount proposed by the PSC falls within the Band A1 of the Constitutional Offices Remuneration Act of 2009 in which Band A1 means: ‘A salary scale commencing at Kshs. 399, 440 per month, increasing by 39, 940 per annum to Kshs. 439,380 per month; thereafter increasing by Ksh.43, 140 per annum to Kshs. 482,520 per month; thereafter increasing by Ksh.49,140 per annum to Ksh.531, 660 per month; thereafter increasing by Ksh.55, 140 per annum to Kshs. 586,800 per month; thereafter increasing by Kshs. 61,140 per annum to Ksh.647, 940 per month thereafter increasing by Ksh.67, 140 to Kshs. 916, 500 per month.’

The major implication of the government’s stance on the CIC commissioners’ salaries – which have not been paid for the last 7 months of service – means they  are unlikely to be remunerated until the matter is resolved.   The fallout from the failure of the government and the CIC to reach an agreement on the issue of commissioners’ salaries has resulted in long-standing delay in the hiring of CIC staff the CIC currently operates without a secretariat. More recently the CIC commissioners have stated that due to the ongoing salary dispute bills on Devolution, Police Reform, Lands, Leadership and Integrity will be shelved. With the next election less then 13 months away is there could not be a worse to shelve these particular bills.  The commissioners have also stated their intention to work on a part-time basis an act that will significantly slow down the implementation process.

While Dr. Alfred Mutua, communicating for the government, is right in stating that the commissioners salaries are above normal (Band A1 according to the Constitutional Offices (Remuneration) (Act 2009) is reserved for the Attorney General and Chief Justice, Commissioners e.g. those in PSC and IIEC, fall within Band A2 or A3).  If the PSC was consulting the Treasury in the CIC salary negotiations, surely the Treasury should have raised the fact that government can neither afford nor sustain such salaries and allowances during the negotiation stage and a more realistic and acceptable salary agreement reached.  If the CIC commissioners’ salaries were negotiated and agreed upon by the PSC, the Treasury and CIC, the commissioners have a right to expect to be paid the agreed amount.   A possible solution of course would be to pay the Commissioners’ the legally negotiated amount and tax both their salary and allowances, just like the salaries of every other Kenyan. But with the majority of the 212 MPs refusing to remit their taxes they have lost the moral authority to insist that other state officials be taxed? In all this confusion one thing is clear there clearly needs to be established an acceptable, affordable and sustainable salary scale for constitutional officers that is acceptable to both taxpayers and the state officers performing the service.

Ikolomani By-Election: The experience of an Election Observer

Posted by on 25th May 2011

Categories: 2012 Elections Citizen Engagement Constituency News

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

There are probably a lot of good things that can be said about the Ikolomani by-election.
Electronic registration made for quick identification voters and it also made it possible
for the officers to identify voters who were registered at more than one polling station
and in so doing reduce rigging. Professionalism of the Interim Independent Election
Commission (IIEC) officials seemed to make the by-election a faster and more pleasant
particularly with the high voter turnout which is unusual in by-elections.

However the by-elections were not without controversy, particularly over campaign
financing and allegations of voter bribery, and this raises the issue of the role money
plays in elections, especially in the lead in up 2012.

The Institute for Education and Democracy (IED) had a team of election monitors on the
ground a month before the by-election and election observers on the ground a day before
the actual poll began.  In a briefing between the two teams, the poll observers asked the election monitoring
team the major issue on which they thought the election would hinge. The election
monitors unambiguous response was money.

The link between election campaigns and the dolling  out of money by political candidates seems to have become the norm. One that is so ingrained in the
public consciousness that even very young children mimic what they see. On the
day of the election while the convoy of observers drove from one polling station
to the next, children who couldn’t have been more than ten, ran beside the convoy
shouting ‘Campaign Leta Pesa’ (campaign bring money).

In any election two things are true candidates need votes, certainly to win an election or
in this case a by-election, and because of high levels of poverty a majority of the voting
public require money for their immediate needs. This has created a dynamic in which the
way campaign funds are used distorts the proper democratic process leading to a situation
where voters sell their votes and electoral fidelity for short-term financial compensation.
Effectively selling long-term developmental outcomes for immediate short-term financial
compensation.

During any election period candidates need votes, voters demand is high therefore the
stakes are higher and voters get more money for their votes, of course the money never
lasts for the five years between elections. After the elections demand for votes is low,
voters already having sold their vote have little to bargaining power and lose the moral
authority to hold their members of parliament to account. Issue based elections and
campaigns are eschewed in favour of candidates with money.  Additionally candidates for
election have had to offer more and more and more money to entice voters to their camp,
and no question is asked as to where the money is coming from.

Even where money distorts democratic process voters are still making a choice between
candidates, but the choice is no longer based on rational, fair and equal examination of
competing policy issues. This may be something we want to think about in this period
when the electoral laws are being drafted.

Cabinet Reshuffle?

Posted by on 7th May 2011

Categories: 2012 Elections Kenya Constitution

The issue of the size of the country’s cabinet is a not a new one, and has drawn
protest from taxpayers since Grand coalition government established the 42
member cabinet in 2008. Kenya’s cabinet of the 40 ministers (less 3, the minister
for higher education, minister for industrialisation and minister for foreign affairs
are currently under suspension) is rivalled only by the cabinets of Pakistan that
has 55 ministers and Sri Lanka, which has 53.

Rumours about an impending cabinet shuffle have been rife many have hinted
that this could be a chance for the President and the Prime Ministers to cut down
Kenya’s bloated cabinet. However the Prime Minister’s public reluctance to cut
down the size of cabinet was evident in his speech in parliament in which he
stated that a smaller cabinet would not necessarily reduce the costs, tax paying
citizens may argue differently.

At its current size (salaries of 40 ministers, 80 assistant ministers + benefits,
allowances not to forgetting salaries and benefits of the President, the Vice
President and the Attorney General) the Cabinet costs the taxpayers upwards of
2 billion shilling per year.

Political analysts have linked the impending shuffle to 2012 politics and the
creation of new alliances and the maintenance of old ones, rather than a desire
to reduce the size of cabinet or the burden of cost of such a large cabinet to
Kenyans.  If there a change in cabinet in the offing it would be worth while for the two
principals to keep the spirit of constitution which limits the Cabinet to a minimum
of 14 and a maximum of 22.

Technically the new style cabinet as envisioned by the constitution (i.e. a lean
cabinet, in which positions are no longer used to attract political support or
reward cronyism, as cabinet secretaries (ministers) are no longer drawn from
members of parliament and members will be required to relinquish their seats if
appointed to cabinet positions and in which appointment is no longer exclusively
done by the president) does not actually start till after the next election in 2012 its
never too early to start implementation especially with regard to numbers.

ICC Process – Issues of Framing and Voice

Posted by on 24th April 2011

Categories: 2012 Elections ICC

By Mzalendo Contributor Moreen Majiwa (@mmajiwa)

As the din grows louder, and the lines between the issues of the ICC case, impending elections, halting implementation of the constitution increasingly become subjects used for political fodder we need to ask:

Who is framing the issue? How are they framing it? Whose voice is the loudest? And which voice are we listening to? And what is the reality?

With a well-orchestrated political campaign masking itself as a prayer rally two of the ICC suspects Deputy Prime Minister/Finance Minister Uhuru Kenyatta and North Eldoret MP William Ruto have managed to capture the issue of the ICC case and frame it to their advantage.

The almost full day, non-stop press coverage of the political rally by most of the TV stations and newspapers has helped this process of capture along.

Yes the coverage of the Uhuru Park rally has been juxtaposed with the stories of still to be resettled IDPs, but if voice is measured in amount of air coverage, or in column inches whose voice is louder, the IDPs or the MPs who attended the Uhuru Park rally? While the suspects remain innocent till proven guilty, the record does need to be set straight about how those at the rally framed the issues.

Issue 1: The return of the suspects was framed as a return of conquering heroes. I leave the definition of hero up to you but the truth is there was nothing to conquer. There was no danger of the suspects being arrested, this around at least. The suspects’ visit to the ICC was in response to a summons to have the charges formally read to them and for the suspects to formally identify themselves to the court.

Issue 2: The ICC and the court process are being likened to the colonial process with constant reference to the judges as ‘wale wazungu’. However the ICC process is nothing like colonization.  Kenya is a voluntary signatory to the ICC statute, a statute that was domesticated in 2008 when parliament enacted the International Crimes Act Cap 16 of 2008.  The freely enacted statute both binds Kenya to the Rome Statute and criminalises wilful attempts to obstruct justice of the ICC (Section 5 and 10). Ironically several of the parliamentarians on the podium at the Uhuru Park were also part of the Parliament at the time when the Rome Statute was made domestic law.

Issue 3: Reconciliation: Some of the MPs at the rally adopted a conciliatory tone.  However as with everything that is said the true measure of reconciliation is the gap between the rhetoric and the action. Between 2007/2008 when the post election violence, how many IDPs have been resettled? How many are still in camps? How many  refugees does Kenya have residing in Uganda? Have IDPs been able to return their homes?

I read somewhere that Rwanda confines its political campaigns to one month before the elections as politicking in Kenya seems to be taking an increasingly destructive tone maybe we should consider doing the same.