Can we Procure External Services to Conduct Kenyan Elections?

After the Supreme Court nullified the win by president Kenyatta in the August elections, there were calls from various factions for either for the IEBC to resign or the United Nations to conduct elections. These calls were based on allegations that the elections were marred with irregularities hence the IEBC could not be trusted. In this article, I shall access the nature of the UN electoral activities and the legal feasibility of such a suggestion.

First, it is essential to note that elections are a vital part of democratic transitions and the United Nations plays a significant role in providing international assistance.

Nature of the UN’s electoral assistance

The electoral assistance takes the form of:

Supervisory function: Election observation, Panel of political and/or electoral experts and Certification of elections.

Election observation: this one involves the collection of information on an electoral process by observation using established methodologies. In this instance, the observers do not participate in the organization of the electoral process but are accredited by electoral authorities following an invitation by national authorities. It is concerned with the results to the extent they are reported transparently and timely.

A panel of political and/or electoral experts. It is normally composed of a small team to follow and report on the electoral process. The panel is normally composed of eminent persons composed of experts in certain fields such as mediation or elections. The panel provides an independent assessment on the overall technical and political conduct of the elections.

Certification of elections. “Certification” is understood as legal process by which a national authority approves or ‘certifies’ the final results of its own national election. It rarely happens. However, in such cases, the United Nations is sought to certify the credibility of all or certain aspects of the elections conducted by the national authority.

In rare cases the UN may be fully responsible for the organization and conduct of elections in the member state. This has occurred mostly in countries that were formally experiencing civil war and there is an institutional break down. This was prevalent in Cambodia (1992-1993) and Timor-Leste (2001-2002). In other cases, the United Nations may be involved in the national electoral administration. This was the case in Afghanistan (2004-2005) and Iraq (2005).

However, the assistance offered by the UN does not include technical support, legal operational or logistical assistance provided to national authorities to develop or improve electoral laws, processes and institutions.

From the nature of assistance offered, what was sought was election supervision as the United Nations was being sought to conduct the elections in Kenya.

Election supervision

This function requires the United Nations to endorse and approve each phase of an electoral processes in order to attest to credibility of an election.

The UN Decolonisation Bulletin no.19 also states that this function can require the direct involvement in establishing mechanisms of elections such as date, the wording of ballot and monitoring of polling stations, counting ballots and resolving of disputes.

Further, It also requires the mandate from the General Assembly or the Security Council. It places the ultimate responsibility for the conduct of elections on the United Nations rather than local administration and requires the UN to endorse the outcome of the vote.

This particular function has been used most recently in East Timor.

Procedure for requesting for assistance from the United Nations

The preconditions and guidelines for United Nations electoral assistance are prescribed in the Secretary General’s Report  A/49/675, under Annex 111. They are as follows.

  1. Requests for electoral assistance must be made by an organ of the member state authorized to bind the nation in agreements with the United Nations. This means that requests from political parties, civil society or other entities cannot be considered. The National Election Management bodies do not have this authority but maybe considered.
  2. The requesting member state should send a formal written request for electoral assistance and should be as accurate as possible.
  3. The requests have to be sent to the United Nations representative at the national or global level.
  4. The requests for electoral assistance have to be submitted within a reasonable time due to the lengthy period required to prepare for an election.

Legal feasibility of the suggestion

The proposition is not constitutionally feasible. This is hinged on the following propositions:

An assistance for the UN to conduct an election cannot be sought by the civil society. The only person authorized to seek the assistance from the United Nations is an organ of the member state authorized to bind the state in agreements with the United Nations. The only person who can make binding agreements is the executive or a relevant state department. In Kenya, section 4  of the Treaty Making and Ratification Act No. 45 of 2012 provides that the National Executive shall be responsible for concluding treaties.

The Constitution under Article 88(4)  recognizes the IEBC as the body in charge of conducting or supervising the elections. The elections in which the United Nations is being sought to conduct ones nullified by the Supreme Court under Article 140(2&3). The UN cannot, therefore conduct elections as the IEBC is the only body that is mandated by the Constitution to conduct elections.

A request for assistance has to be sought within a reasonable time which the UN cannot handle in this case. As seen earlier the election been conducted is a fresh election under Article 140 of the Constitution. This election has to be conducted within sixty days. For an election to be done by the United Nations, it has to be submitted for consideration in not less than four months. From the available timelines, it will not be possible to conduct an election on time, and thus there will be a constitutional crisis.

Sovereignty of the people. The Constitution under Article 1 provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. This means that all powers are derived from the people. In addition, Article 1(4) prescribes that the sovereign power is only exercised at the national and county level. This means that the sovereignty of the people cannot be applied at the international level. The sovereignty of the people cannot be donated to the United Nations.

Supremacy of the Constitution. Article 2 prescribes that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. The Constitution has provided for specific provisions with regards to elections. For example under Article 136 the election of a president shall be conducted as per the Constitution. The Constitution has not in any means provided for an international organization to conduct an election. Moreover under Article 81 on the Principles of an electoral system provides for an election that is free and fair and conducted by an independent body. This independent body provided for is the IEBC. Therefore, supremacy clause implies that elections have to be conducted as per the Constitution and not any other law.

In conclusion, the Universal Declaration of Human Rights provides that the will of the people shall be expressed through periodic and genuine elections based on government authority. This means the role of conducting an election shall be under the care of the sovereign. Furthermore, the Constitution provides only IEBC can conduct an election. This means that the United Nations as per the current constitutional dispensation cannot conduct elections in Kenya.

17 Responses

  1. Awesome piece Counsel Wakaba the very sound thought of facts and law clearly gives the Kenyan Jurisprudential position in terms of electrol laws.

  2. Congratulations Mr.Wakaba. This is a good piece. Well researched and straightforward. I look forward to more articles from you that touch on Kenya’s arising legal issues. For instance, on the right to healthcare in Kenya.

  3. To start with, it’s commendable that this peace is coming way after elections when the political temperature has calmed down. That’s wise, or so I think.

    Secondly, I agree with the legal analysis and constitutional interpretation employed by the author.

    However, having said the above, I wish to register my disagreement with the writer and other Kenyans who believe in the so called Constitutional crisis. This is just a big word being used by lawyers and political analysts to scare the citizens. I’m of the school of thought that the spirit of the Constitution cuts across and remains Supreme in interpreting all clauses of the Constitution.

    Democracy and sovereignty of “we the people” must not be compromised in pursuit of positivistic interpretation of the Constitution. In fact, there are instances in Kenya and many other states that the express provisions of the Constitution have been set aside (the so called Constitutional crisis) and decisions made by national leaders to solve a national crisis. The IPPG and 2008 National Accord are instances which provided a more realistic approach to the situations at hand than the express provisions of the then Constitution was able to do.

    The Law, including the Constitution must be interpreted in a manner that resonates with the situation, the people and the government. A strict positivist interpretation has proven to be very unreasonable especially with a drastically progressive Constitution as ours. Do you realise we are not experiencing any Constitutional crisis even with millions of Kenyans unable to access clean water, Medicare and housing, all of which are our constitutional rights expressly provided for and the govt obliged to provide?

    What’s my point?
    In summary, if we were having the political will to strengthen our democracy and allow transparency and credibility in our electoral process, nothing, and I repeat, nothing, prevents us as a nation from engaging more competent and credible institutions like UN to conduct our elections. Nothing at all. Our only problem is that we are having a political class with selfish interests, unwilling to do anything for the good of our nation. That’s why the constitutional interpretation always tilts to whichever side they feel have their interests at heart but not the interest of “we the people”

  4. First, Counselor, I really appreciate your feedback on this. Secondly, thank you for expounding really on what constitutes constitutional crisis since most of the provisions of the Constitution have not been complied with and yet we are still standing. I concur with your proposition that indeed this is a jargon invented by politicians to scare Kenyans.

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    • Thank you for your feedback on this issue. It was indeed a pleasure writing this article. I appreciate the great insights given. We will continue writing even more articles. Cheers.

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