Why by-elections could delay further
By Samuel Kariuki, July 23, 2025As the newly sworn-in commissioners of Kenya’s electoral body prepare to conduct by-elections, the Attorney General has revealed a legal bottleneck that could further delay long-anticipated mini polls.
AG Dorcas Oduor pointed to the possibility of court cases ensuing since the 90-day timeline for the Independent Electoral and Boundaries Commission (IEBC) to conduct the by-elections after Parliament issued writs has lapsed for most of the electoral areas.
“I realise there is a challenge, because a writ was issued by Parliament which requires that by-elections be conducted within 90 days. The 90 days have elapsed, and that is an area that will need advice, and rightly or wrongly, might end up going to court for some interpretation,” Oduor said, adding that all Kenyans must be represented in both county assembly and Parliament to avoid disenfranchisement of any Kenyans, noting that citizens are waiting for the commission to conduct elections in the areas not represented.
During the new commissioners’ induction workshop in Mombasa last week, IEBC chairman Erastus Ethekon said that they will kick off, as a priority, the process of conducting the by-elections for 23 elective seats currently vacant.
The IEBC boss acknowledged that writs had been issued by respective speakers; however, he did not elaborate on how they would handle the legal implications brought about by the lapse of timelines to conduct the polls.
Tackling representation
“IEBC will work with Parliament and political parties to address the issues of pending by-elections in the next few days. This is our priority, given the fact that the people in those affected areas must have their elected representatives within the shortest time possible because it’s their constitutional right,” Ethekon told journalists in Mombasa.
According to Ethekon, there are 23 pending by-elections in various electoral areas, including one Senate position for Baringo, six vacant seats at the National Assembly and 16 positions for various members of the County Assembly.
Residents of Banisa constituency in Mandera County have endured the longest period without representation in the National Assembly, of over two years, after the death of area MP Kullow Hassan in March 2023.
The AG, who spoke during the launch of the 2025-2028 operational plan for the Judiciary Committee on Elections (JCE), said the committee must ensure that electoral disputes are determined within the time limit prescribed by the Constitution and the election laws.
“Judiciary Committee on Elections must ensure that pre-election disputes are expeditiously determined to allow for adequate time for political parties to prepare and IEBC to print ballot papers within the time specified by law,” the AG added.
She noted that one of the reasons why the Constitution and election laws prescribe strict timelines for election dispute resolution was to stop cases where electoral disputes would survive to another election.
She also called upon Parliament to ensure that funds are available for the electoral agency to adequately prepare for by-elections and elections.
“IEBC must work with parliaments and relevant organs of government to conduct by-elections in those areas whose elected representatives have vacated their seats for various reasons,” she stated.
All institutions and players in the electoral circle, she insisted, must build public confidence so that Kenyans can build trust in the outcomes of elections.
The electoral body, Oduor said, must ensure that the Electoral Code of Conduct is adhered to by political parties in the run-up to the election.
She also urged the committee to conduct a review of all sections of the law that judges have identified as being problematic and an encumbrance to a free and fair process.
“The Office of the Attorney General can propose the necessary legislative amendments where necessary,” Oduor offered.
Supreme Court Judge Njoki Ndung’u, who took over the helm of JCE from Justice Mohamed Ibrahim, said that as the country gears up towards the next general elections, the Judiciary will defend its independence fiercely and resist any attempt to intimidate or interfere with the judicial process.
“We are definitely already in the pre-election period of a high-stakes competition between the political actors and a contest that must be properly conducted in order to reflect the will of the people,” Ndung’u said, adding that it is the courts that will be the final umpire on disputes that may emerge around the regulation, management and the outcome of such contests.
Judge Ndung’u noted that social media has given the justice system a sneak preview of what to expect in the 2027 polls, including the tensions that are starting to arise.
“Whether it is from freedom of speech or whether that freedom of speech is actually hate speech, or where there is potential for electoral offences that may be committed,” she said.