Fears abound that unless a set of minimal changes focusing principally on Kenya's election system and the Electoral Commission of Kenya are instituted, the playing field could still be tilted in favour of the ruling party, Kanu, in the next general election.

Kenya held multiparty presidential and parliamentary elections in1966, 1992 and 1997. In last two, the opposition and other impartial observers felt the playing field was heavily tilted in favour Kanu.

"In 1992,the Electoral Commission of Kenya – the body charged with supervising elections – in Kenya was solely composed of President Daniel arap Moi's appointees," says a former member of the commission.

"To many people therefore, he says, "the ECK was merely one of the executive's arms, participating in the political schemes aimed at keeping President Moi's regime in power."

According to him, the story was only marginally different during the 1997 elections following changes made in the composition of the ECK as a result of the minimal constitutional review package voted in November of that year after the Inter-Parties Parliamentary Group negotiations.

"There is little evidence that the changes reduced the politicisation of the electoral body following the expansion of the ECK to 22 commissioners, including 10 new ones representing the Opposition, neither was that necessarily a sign of its increased independence." 

An opinion poll carried out late last year by Pollsters Strategic Public Relations and Research Ltd showed that most Kenyans believed that the commission had failed in its task to organise free and fair elections.

The results showed that 56.9 per cent of Kenyans thought the ECK had not been transparent in its dealings, compared with only 33 per cent who thought otherwise.

The poll also showed that only four out of 10 Kenyans were convinced that the commission had been able to contain election violence perpetrated by party agents and Members of Parliament.

In the poll, the body was indicted on virtually all parameters of judgement– election violence, civic education, the conduct of elections and accountability.

One key area many feel needs to be looked at is the independence of the commissioners and their security of tenure. In the past, calls to entrench the commission into the constitution have gone unheeded.

All the 22 members of the commission have security of tenure during the five-year period they are in office and can only be removed by Parliament or by the President refusing to renew their terms.

In 1996, just before the start of the constituency review process, four of the commissioners whose mandate had expired after five years were not re-appointed.

The commission's district election co-ordinators, the ECK's eyes on the ground, however, do not enjoy security of tenure and are therefore not sufficiently shielded from political manoeuvres at the grassroots.

As it is, most co-ordinators are vulnerable on the ground, where they have often been accused of serving partisan interests.

The contract of the commission's chairman Mr Samuel Kivuitu is due to expire later this year, as are those of the 10 commissioners nominated by the Opposition.

Last September, President Moi refused to renew the terms of three of the Kanu-appointed commissioners and appointed seven others to the commission.

Mr Kivuitu, a lawyer who took over the chairmanship of the commission in December 1997 when he succeeded the late Justice Zachaeus Chesoni, who moved up to become the Chief Justice, came under heavy criticism early that year when he led a delegation of Kanu-sponsored commissioners to President Moi at State House.

The team that met President Moi comprised Mr Kivuitu, Mr Henry Jura, Mr Eliphelet M'Thambu, Mr Edward Lopokoyit, Mr Nathaniel Chebelyon, Ms Wambui Karanja, Mr Silas Tunu, Mr Frank Kwinga and Mr Sheikh Ali.

Two other Kanu appointees, vice chairman Gabriel Mukele and Mr Edward Cherono, were excluded.

Observers say although the trip to State House may have been merely routine as Mr Kivuitu later argued, the surreptitious manner in which it was carried out could easily have left room for suspicion. 

The ECK's other big undoing are administrative and managerial incompetence.

The 1997 polling went on for an extra day because of the El Nino rains, something critics say could have been avoided had the commission been better prepared.

Others have claimed that the delay was occasioned to facilitate vote rigging.

Since the 1992 elections, violence has pervaded the political atmosphere, influencing voter choices, especially where voters were compelled to vote not out of choice, but out of fear.

Critics say this made it difficult for ECK to deliver, especially in those areas where the voters were susceptible to bribery, ethnicity, violence and other electoral malpractices.

They say unless things change, the current commission will not be any different from its predecessors.

Before 1992, most of the bodies entrusted with the task of conducting elections had neither secretariats nor grassroots presence and were only visible at their headquarters.

The responsibility of conducting elections was thus delegated to civil servants in the districts, who overshot their mandate and rigged elections on "orders from above."

Although it had been legislated into law in 1963, ECK's work, until 1992, had been limited to constituency boundary reviews.

In between, elections were conducted by the supervisors of elections who were civil servants in the Attorney General's office as there were no clear terms of reference for the commission.

Since the re-introduction of multipartyism in 1992, ECK has striven to re-engineer itself in order shed off the image of previous election bodies. Whether it has been successful is debatable.

"We have been repeatedly accused of lack of credibility and the legitimacy to organise a free and fair contest," an ECK commissioner said last week on condition of anonymity.

The pre-election period preparations are also another area where the commission is being keenly watched.

During the last elections inn 1977, the ECK rejected an offer for free ballot boxes and electoral stationery from Scandinavia only to overshoot its budget by more than Ksh1 billion ($12.5 million).

However, last month the commission invited tenders for the supply of ballot boxes and asked reputable local and international firms to supply material for the elections. The Seventh Parliament had initially approved an expenditure of Ksh2.992 billion ($37.4 billion) on the elections.

The commission has also increased the number of polling stations countrywide by 1,300, raising the number of polling stations to 14,000.

Mr Kivuitu said the changes were prompted by a survey which had shown that some voters travelled long distances to cast their ballots.

But all these would come to naught if the exchequer, which funds ECK operations, fails to release sufficient funds and other requisite facilities in good time.

Questions still linger in the areas of voter education and the exact procedure to be followed in the event of a run-off.

The latter was a key point in the election petition filed against President Moi's re-election by the runner-up in the 1997 general election, the Democratic Party of Kenya's Mr Mwai Kibaki.

Mr Kibaki felt the commission ordered more voters' cards than was required in anticipation of a run-off without stating exactly who they had expected to feature in the run-off and why.

Section 12 (4) of the National Assembly and Presidential Elections states that in the event there is no winner due to various grounds stated in Section 5 of the Constitution (which includes failure to garner 25 per cent of the presidential vote in five provinces), fresh elections should be held within 21 days. Only in the event of such a run-off can new registers and ballot papers be printed again.

The commission also has a constitutional obligation to educate voters in order to ensure they are empowered to make proper choices and are not influenced by transient situations precipitated by unscrupulous politicians and their supporters.

This is one area where the ECK has performed dismally.