NATION Insight Report
Monday, February 4, 2002

By EMMAN OMARI

The institutions that manage elections are mirrors of political changes that have taken place in the country since independence.

The most notable was the establishment of a full-time Electoral Commission of Kenya which came with the transition to a multi-party system a decade ago.

Before that, elections were managed by a Supervisor of Elections, an officer in the Attorney-General's chambers, and handled across the country by administrative officials with District Commissioners serving as returning officers.

Before 1963, the colonial government had designated an officer of the rank of an under-secretary in the Governor's office to deal with the electoral matters.

But soon after independence, a department was crafted and switched to the Office of Attorney General under the Supervisor of Elections.

It dealt with all issues pertaining to elections, including the actual elections, the voters' roll and civic and parliamentary boundary reviews.

Mr Darius Mbela, a young civil servant who went on to rise to Permanent Secretary before switching to politics on retirement–now MP for Wundanyi and formerly a Cabinet minister–was the first Supervisor of Elections.

His biggest test came in June 1966 when he was faced with the challenging task of supervising the so-called "Little General Elections".

These elections were called after the country's first Vice President, Mr Jaramogi Oginga Odinga, walked out on Kanu to found the Kenya People's Union.

KPU politicians charged that the electoral process was flawed where returning officers had been carefully selected and perceived to be friendly to Kanu.

But Mr Mbela weathered all the criticism and at one stage commented that "when sitting in my office, I neither see images of Kanu nor those from KPU."

The elections had something relevant and telling for the current scene, especially with fears that Kanu wants to increase the number of constituencies to its advantage: Of the 28 contested seats, the KPU got just seven seats with a total of 79,000 votes, while Kanu took 21 seats with just 36,000 votes!

After the elections, Mr Mbela was steadily promoted till he became a Permanent Secretary. He was succeeded as Supervisor of Elections by Mr Norman Montgomery, a Kenyan of British descent thought particularly loyal to then Attorney General Charles Njonjo.

He was to the serve the longest tenure–between 1967 and 1982– so long that the electoral process became synonymous with the familiar pipe-smoking images of Mr Montgomery.

He is the only head of elections to have served long enough to supervise the three general elections - 1969, 1974 and 1979 - in the history of independent Kenya. He retired just before the snap general elections of 1983 called to dismantle the Njonjo political and civil service machinery after the latter fell out with President Moi.

Mr Montgomery was succeeded by a succession of figures including Mr Joseph Mwangovya and Mr Zachariah Nyarango, until the office was abolished with the coming of the multi-party system and the establishment of the Electoral Commission to handle all electoral matters.

Ironically, even before the Electoral Commission was formally established, it had all along been a constitutional body, but was only activated from time to time under the name of the Constitutional Boundaries Review Commission.

As the name suggests, it was charged only with the mandate of reviewing constituency and civic ward boundaries, while the actual management of the electoral process had remained with the Supervisor of Elections aided by the Provincial Administration.

As the first chairman of the new-look Electoral Commission, former High Court judge, the late Zaccheaus Chesoni, faced an acid test.

The Opposition saw him as a Kanu hatchet man, and was quick to cry foul. His suitability was questioned because of the manner in which he had been twice forced to leave the judicial service.

From the beginning, Justice Chesoni's tenure was rocky, and it did not help matters that his style of managing the commission was increasingly called into question.

Nevertheless, he soldiered on and and managed the historic 1992 elections, which though not perfect, were deemed by local and international election observers to have generally "reflected the will of Kenyans" as a foreign observer commented then.

There was a surprise when in the run-up to the 1997 elections, Justice Chesoni, only weeks after being sworn on for another term, was re-appointed to the bench – as Chief Justice.

He was succeeded by his deputy, Mr Samuel Kivuitu, who still holds the mantle.

Although the Electoral Commission has come a long way and is secured by the Constitution, with members having security of tenure, there is much more that could be done to make it more independent and effective.

The operational statutes which it invokes during its working, for instance, include the Societies Act when it comes to dealing with political parties. In the electoral process, the Commission invokes various provisions in the National Assembly and Presidential Elections Act and the Local Government Act.

Previous efforts to put in place specific legislation directly linked to ECK have not been successful.

For instance, Attorney General Amos Wako published the Political Parties Bill on December 3, 1995 which set out how parties should operate including the process of registration.

The Bill was shot down by Kanu barons even before it found its way to Parliament and it has not been revived.

Five years ago, a Task Force on Law Reform also made extensive recommendations, including the drafting of a Bill on electoral process meant to give the ECK the requisite muscle, but it has not been published.

Budgetary constraints have made the ECK fail to put up the necessary mechanism in the country's 222 constituencies although some offices now exist at every district level with a co-ordinator.