IEBC in crisis, Marjan says in court papers

Operations of the Independent Electoral and Boundaries Commission (IEBC) have been paralysed and the agency left irrelevant due to the absence of commissioners since January after chairman Wafula Chebukati and six commissioners left at different points.

In documents filed in court by IEBC CEO Marjan Marjan, the commission has confessed that it has been under a constitutional crisis since all the commissioners left, rendering it unable to execute its mandate, including conducting six overdue parliamentary and various civic by-elections.

The lacuna has also impacted on the commission’s preparations for constituencies and boundaries review scheduled for next year in accordance with the Constitution. According to Marjan, IEBC has not carried out by-elections for the pending parliamentary and wards while its policy and oversight roles remain dysfunctional.

“Crucial operations at the electoral agency came to a standstill following the retirement of chairman Wafula Chebukati and commissioners Abdi Guliye and Boya Mulu in January after serving their six-year non-renewal term,” Marjan says in court documents seen by People Daily.

Resigned

Three other commissioners resigned rather than face a tribunal to investigate their conduct of last year’s presidential election. Vice Chair Juliana Cherera and commissioners Justus Nyang’aya and Francis Wanderi resigned at the end of last year, while President William Ruto sacked commissioner Irene Masit following the recommendation of the tribunal that found her guilty of misconduct.

Since then, Marjan says, no policy business has been transacted at the commission owing to the absence of the commissioners. In his response to a case filed by one Brian Mbugua, Marjan has urged Parliament and the IEBC selection panel to play their part and stop the continuation of the constitutional crisis at IEBC.

He has informed the court that IEBC will not be able to conduct by-elections for Banissa Member of Parliament and several others in various wards owing to the delayed recruitment of new commissioners.
“The commission sympathises with the people of Banissa constituency who have a right to representation by a person of their choice in the national assembly,” says the IEBC in court papers.

Legal advice

Other constituencies where the IEBC has not conducted by-elections include Magarini, Borabu, Fafi, West Mugirango and Khwisero. The six posts were declared vacant after court ordered repeat elections while in some cases, the incumbents died.

In an affidavit, Chrispine Owiye, the commission’s director of legal services, says the secretariat sought legal advice from the Attorney General on holding of by-elections in the absence of commissioners. The AG’s advisory opinion was that the process leading up to the conduct of elections must be authorised and sanctioned by commissioners.

“In the absence of the commissioners, no Gazette notices may be executed for publication to facilitate the conduct of any by-election as the same would lack the sanction of the commission, thereby violating the Constitution,” said AG Justin Muturi in his communication to IEBC.

The process to replace the commissioners has dragged on due to a political standoff between President William Ruto’s Kenya Kwanza Alliance and Raila Odinga’s Azimio la Umoja Coalition, the minority party in Parliament. One week ago, the National Dialogue Committee, which brings together representatives from the two political formations, announced it had settled the question of reconstituting IEBC amicably, signaling an end to the crisis.

Minority leader Opiyo Wandayi, who sits in the committee, said: “We have come to an agreement that we shall have a reconstitution of the IEBC selection panel and in this reconstitution, the membership will increase from the present seven to nine to encompass various shades of opinions and interest groups and persons.”

IEBC needs to conduct at least three parliamentary and ward by-elections due to deaths and court orders that overturned the initial declarations of victory after the August 2022 election. They include the Bannisa MP seat, whose holder Kullow Maalim Hassan, died after a motorcycle hit him in March. His death has precipitated the case that IEBC is now responding to.

Article 101 of the Constitution provides that a by-election ought to have been held within ninety days of the occurrence of the vacancy in the said office. This has not happened in all the cases where by-elections ought to have been conducted.

Through Lawyer Adrian Kamotho, Mbugua filed the case in court seeking to have the electoral body directed to conduct the by-election for Banissa Member of Parliament within 30 days of the conclusion of the case.

He says that due to the failure by IEBC, the AG and National Assembly to carry out the by-election within the mandated timelines, the people of Banissa Constituency have been deprived of a person of their choice to represent their interests in the National Assembly in line with Articles 94 and 95 of the Constitution.

According to Kamotho, Section 11 (A) (b) of the Independent Electoral and Boundaries Commission Act, mandates the secretariat to perform day-to-day administrative functions of the commission and implement the policies and strategies formulated by the commission. This includes resolving casual vacancies that may arise from time to time between the general election cycle.

Selection panel

“That Section 3 (1) of the Elections (General) Regulations, 2012 mandates the IEBC to appoint a returning officer for each constituency.

It is a matter of public notoriety that all constituencies including Banissa have full time Constituency Election Coordinators, formally designated as returning officers, and whose role inter alia is to coordinate elections at the constituency level,” says the lawyer, arguing that there is no reason why the by-elections cannot be held.

Further, the petitioner wants the court to issue an order compelling the Selection Panel for the Recruitment of Nominees for Appointment as the Chairperson and Members of the Independent Electoral and Boundaries Commission to submit the names of persons qualified to be appointed as chairperson and members of the electoral body. He wants the Head of State to name the two within two weeks.

“We seek an order directing the selection panel to within 14 days submit to the President, the names of two persons qualified to be appointed as chairperson, and nine persons qualified to be appointed as members of IEBC for transmission to the National Assembly,” Mbugua says in his petition.

Failure of the selection panel to pick the nominees to be appointed as IEBC commissioners, he says, has led to a constitutional crisis and the people of Banissa are suffering for lack of political representation. The panel was tasked with the responsibility of nominating individuals for the positions of IEBC chair and commissioners but several roadblocks have since arisen that have stalled the process.