NATION Insight Report
Monday, February 4, 2002

By MACHARIA GAITHO

"It has been, to say the least, a type of leadership completely lacking in the basic rudiments of management and administration...not only has the commission lacked direction, it has been a talking shop with neither agenda nor records in the form of minutes. Whatever has been accomplished so far can be attributed to the grace of God, and even that has been off the vital target of ensuring free and fair elections."

So read a critique by electoral commissioners Francis Nganatha and Habel Nyamu, only four weeks to the 1992 General Election.

The first multi-party general elections in independent Kenya were also the first to be handled by an independent electoral commission – as opposed to the previous practice of civil servant supervisor of elections working with the Provincial Administration – and with the clock ticking, it seemed the process was badly off track.

Mr Nganatha and Mr Nyamu insinuated that the leadership of Justice Zacchaeus Chesoni was in fact deliberately working to sabotage the electoral process.

While the statement revealed deep divisions within the Electoral Commission, it also served as a wake-up call on the commission's inherent contradictions and weaknesses.

Justice Chesoni suddenly opened up to dialogue with Opposition leaders he had previously seemed not to acknowledge existed. The extremely weak administrative management of the commission was strengthened, mainly through officers seconded by the government, while funds which had been coming only in drips were released by the Treasury.

The commission has come a long way since then. It has secured more independence from the Executive, with its own functional secretariat and budget, which was previously controlled by the Clerk of the National Assembly.

But still, sources close to the commission say it still has inherent administrative weaknesses. Too many of the staffers are seconded from the civil service and have little motivation.

Besides, the regime inherited from Justice Chesoni in 1997, where the commissioners are often engaged in routine tasks instead of functioning as more of a regulatory and supervisory authority, is still in place.

One problem that crops up often is a lack of transparency. The appointment of election officials-returning officers or voter registration clerks-is often an opportunity for commissioners to secure placement for their friends and relatives.

Even in matters such as procurement of goods and services, commissioners sometimes compete with each other to secure contracts for favoured firms. Some commissioners even directly supply goods and services.

This was revealed in the run-up to the 1997 elections when the High Court briefly barred Commission Chairman Samuel Kivuitu from appearing as counsel for the commission in a case filed by an candidate whose nomination papers had been rejected.

Justice Richard Kuloba found it strange that the chairman should appear as counsel for the commission when he might well be called in as a witness.

Though the finding was reversed on appeal, it highlighted a problem brought out by successive reports of the Controller and Auditor-General, which questioned why the commissioners who were lawyers appeared for the commission in the election petitions arising out of the 1992 General Election.

They not only put in their fee notes, but also claimed sitting allowances for court appearances.

Another matter highlighted by the Auditor-General was the fact that commissioners were being paid sitting allowances for every single day of the year, including Sundays and public holidays without supporting records.

Being a commissioner had been turned into a full-time job without a scheme of service or fixed terms of employment. So, the commission got around it by paying sitting allowances for non-existent sittings.

The situation has since been regularised, but the contradiction still remains; a commission, by its very nature, is not a full-time occupation except for the directly employed staffers. It is a regulatory body which lacks executive duties.