After serving for a decade, Electoral Commission of Kenya Chairman Samuel Kivuitu’s term of office expires on December 2nd 2007, just 25 days to the general elections. Already, that of his long serving Vice Chairman, Gabriel Mukele, expired last month and was not renewed.
The straight shooting Kivuitu, while saying "he had already started packing his things", has been quick to add that he will not accept a conditional re-appointment and that he had served the commission with integrity and would not be ready to be re-appointed with any strings attached. Mr Kivuitu cannot hide his pride as regards the work he did at ECK, having supervised the 1997 polls and the historic 2002 general elections and the highly anticipated 2005 constitutional referendum.
The appointment or term renewal of commissioners of the ECK are the constitutional prerogative of the President – currently President Kibaki. His fellow presidential candidates in the forthcoming general elections, Mr Kalonzo Musyoka (ODM-Kenya) and Mr Raila Odinga (ODM) have strongly urged Kibaki to retain Kivuitu for the elections to be seen as fair.
Cardinal-designate John Njue, speaking at a church service, has also appealed to President Kibaki to renew Kivuitu’s term so as to allay fears that the general elections will not be rigged. Joining calls to renew Kivuitu’s term were the Law Society of Kenya and influential diplomats such as those of the EU, US and other countries.
In order to understand the heat, it is important to appreciate how critical the post of the Chairman of the ECK is. Section 42A(b) of the constitution gives the ECK sole responsibility in directing and supervising the Presidential, National Assembly and local government elections. The Chairman is further mandated to declare presidential winners and/or declare parts or the entire electoral process null and void.
So far, there has been no government communication published on the renewal of contracts for Chairman Kivuitu and seven other commissioners whose terms expire in the next few weeks.These commissioners are Stephen Mageto, Abuya Abuya, Habel Nyamu, Kihara Muttu, Jack Tumwa, Samuel Manyunza and Rachel Mzera. Is it possible for the government and opposition to have a meeting and iron out differences so that elections can be conducted in an atmosphere free of mistrusts? Can the religious bodies, some of which have already taken sides, spearhead efforts to bridge the political divide? Or perhaps, should commissioner appointments be distributed evenly among Kenya's ethnic communities?
The ECK has 22 commissioners since the Inter-Parties Parliamentary Group (IPPG) made additions to its composition following pressure from the opposition. The IPPG was in itself a gentleman’s agreement between political parties. Originally, the ECK had 12 commissioners but the opposition was allocated 10 additional slots in 1997 following IPPG deals.
Except for Kivuitu, who was seconded to ECK by the former ruling party KANU, the current crop of commissioners was entirely nominated to ECK by opposition parties — DP, Ford-Kenya, Ford-People and Ford-Asili. These parties joined the Government in 2002 and have since regrouped under PNU.
It may be legal, but is it fair for President Kibaki to be an interested party (player) and still retain powers to appoint referees and touch judges (commissioners), something that he vigorously fought against in his days as Official Leader of Opposition ?
Related: Who Is This Man Samuel Mutua Kivuitu?