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The ongoing recruitment of new IEBC commissioners to replace former chair Wafula Chebukati and the six commissioners faces a fresh hurdle after Busia Senator Okiya Omtatah lodged a lawsuit to halt the process.

In his application filed under certificate of urgency, the rights activist claims the hiring is illegal and unconstitutional as the process is premised on a law that is entirely invalid, null and void.

Omtatah wants Milimani High Court Constitutional and Human Rights Division to suspend the recruitment process and all activities so far conducted by the seven-member Selection Panel of the recruitment of IEBC commissioners led by Bethuel Sugut as they are founded on the Independent Electoral and Boundaries Commission (Amendment) Act, 2023 which is a void law.

According to the lawmaker, the IEBC Act of 2023 was invalidly passed by the Senate in January this year.

Political stakeholders

The Busia senator wants the ongoing reconstitution of the poll body stopped by the court saying the amendments of the repealed IEBC Act 2012 should be conducted afresh with the input of all political stakeholders.

The lawmaker stated that once the report on the bill was formulated by the Senate Justice and Legal Affairs Committee, it was never debated and was instead approved without the concurrence of the House. “The petitioner is aggrieved that the Act is an unconstitutional and, therefore, invalid and void law because the Senate passed the IEBC (Amendment) Bill, 2022 (National Assembly Bills No. 49 of 2022) without considering the report of the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights,” reads the court papers.

The Senator further claims that the Senate did not debate the law to change the selection panel as is required. His take is that the bill was withdrawn before a vote was taken by members in plenary. “The IEBC (Amendment) Bill, 2022 (National Assembly Bills No.49 of 2022) was unconstitutionally and unlawfully passed in the Senate on January 19 2023, when the Chairman of the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights was forced by the Executive to and he unilaterally ambushed the Committee members and the House when he withdrew the Committee’s Report which he had tabled on behalf of the Committee, to avoid its being debated and subjected to a vote,” Omtatah states.

He says the chairman of the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights tabled the report at a special sitting  of the Senate on January 19 this year but Senate Speaker Amason Kingi directed that it be debated and voted on the same day.

But when the Senate resumed its sitting in the afternoon, the Chairman, acting beyond his powers, ambushed the House, when he unilaterally “withdrew” the report and the House proceeded to debate and pass the Bill in its original form without considering the report and the amendments recommended therein.

Omtatah says he is a member of the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights and he avers that there was no resolution of the Committee to withdraw the report, even though such resolution would be meaningless because the law does not provide for such.  

Omtatah argues that by withdrawing the report, which had recommended several amendments to the Bill, it was passed without amendment.

Report tabled

He states that the Senate Standing Orders are clear that once a report of a committee is tabled in the House, it must be subjected to a vote where it is either adopted -with amendments if need be- or rejected. “In any event, Senate Standing Order No. 151 (2) requires the senate to “consider the Bill as reported from the Select Committee upon a Motion “That the report of the Select Committee on the… Bill, be approved,” he says.

Further, Omtatah argues the Speaker of the Senate ought to have but failed to reject the purported withdrawal of the report since it was already the property of the House.  

The activist has also expressed that the ongoing recruitment to fill the vacant slots within IEBC is not hinged on the law terming it an exercise in futility.