W

The re-constitution of the Independent Electoral and Boundaries Commission (IEBC) is now in sight after a High Court ruling yesterday okayed the composition of the selection panel.

Names of nine panel members nominated by five bodies are now expected to be submitted to President William Ruto for the appointment and soon after, they will be required to appoint commissioners within 90 days.

The selection panel consists of Dr Nelson Makanda, Fatuma Saman, Evans Masati, Nicodemus Kipchirchir, Andrew Tanui Kipkoech, Caroline Kituku, and Linda Koome.

Nevertheless, the fate of Dr Koki Muli hangs in the balance as there is a battle over her appointment at the Court of Appeal.

Justice Dora Chepkwony yesterday delivered the ruling to a petition filed by Boniface Njogu before the Kiambu Law Courts. It challenged the fact that persons living with disability were not incorporated in the hiring panel.

“Having established that the petitioner has not proven any constitutional and statutory violations, the prayers to quash the list are not merited. This petition is, therefore, dismissed,” ruled Justice Chepkwony. 

READ: Court okays IEBC selection panel

The Attorney General (AG) Dorcas Oduor urged the court to dismiss the case saying that since there are nine nominees, it is practically impossible to have all ethnic groups represented. 

Inclusive process

The government legal advisor also said that the process was inclusive as it was conducted by the Public Service Commission (PSC).

Yesterday, Justice Chepkwony said it was critical to compare the allegations to the law to determine whether they were justified. The judge was of the view that the law does not require all ethnic groups to be represented in the IEBC.

She also said that there was a requirement that the appointing authority ought to seek and recruit persons with disabilities progressively. Nevertheless, the Judge found that Njogu had not also proved that there were persons living with disabilities who applied or were locked out.

“It is imperative that the court considers each separate provision and its applicability. It is now settled that representation is not an absolute one but there should be efforts to show progressiveness,” she said.

Following months of a sustained push by the political class to have the case prioritized, Justice Chepkwony yesterday ruled that there was no evidence to show that persons living with disabilities were left out or the list of nominees did not have gender or regional balance.

“Having established that the petitioner has not proven any constitutional and statutory violations, the prayers to quash the list are not merited. This petition is, therefore, dismissed,” ruled Justice Chepkwony.

Notably, once the panel is given the green light, it will consider the applications, and shortlist and interview the applicants before forwarding the name of one person for appointment as chairperson and six persons for appointment as commissioners to the President for nomination.

READ: IEBC: Lawyers warn of a ticking time bomb

“The selection panel shall finalise the recruitment exercise within 90 days of its appointment and forward the names of the nominees to the President and shall thereafter stand dissolved,” reads the IEBC Act, 2024.

 Boundaries review

Further, President Ruto will within seven days of receipt of the names forward the list of nominees to the National Assembly for approval in accordance with the Public Appointments Act. If approved, the commissioners will assume office.

But as the new commissioners assume the ranks, a full in-tray awaits; the boundaries review and delimitation exercise is top on the agenda. The delimitation of boundaries is long overdue with the March 2024 deadline having elapsed.

Article 89(2) of the Constitution provides that the IEBC shall review names and boundaries of constituencies at intervals of not less than eight years, and not more than 12 years. The last review was carried out in March 2012.

The lack of commissioners following the exit of chairman Wafula Chebukati and Commissioners Boya Molu and Abdi Guliye, whose tenures expired in January 2023, has compounded the situation.

Four other commissioners — vice chairperson Juliana Cherera, Francis Wanderi, Justus Nyang’aya and Irene Masit — were also kicked out of office following their rejection of the 2022 presidential election results that declared President William Ruto the winner.

Some of the targeted constituencies in the parliamentary boundaries delimitation include Othaya, Ndaragwa, Budalang’i, Vihiga, Voi, Wundanyi, Mwatate, Galole, Bura, Isiolo South, Samburu East, Laisamis, North Horr, Saku, Kilome, Mukurwe-ini, Mbeere North and Mathioya.

Others are Kangema, Marakwet East, Keiyo North, Tetu, Mogotio, Lamu East, Lamu West and Mvita.

Population quota

Thika Town MP Alice Ng’ang’a has tabled a proposal in the National Assembly to amend Article 89 of the Constitution to protect 26 constituencies protected in the first boundaries review, even after failing to meet the population quota requirement and risking being merged with others during the second review.

ALSO READ: 40 constituencies risk disbandment amid delays to appoint IEBC commissioners

The Constitution of Kenya (Amendment Bill) 2023 seeks to amend the law to ensure the constituencies are protected for another minimum of eight and a maximum of 12 years, allowing them to gradually grow their population to meet the threshold.

“The Constitution only safeguarded the 26 constituencies from the initial review in March 2012. With the second review due in 2024, 12 years after the first, it is crucial to ensure the constituencies are not merged with others,” reads the Bill.

Moreover, the electoral commission will have a herculean task conducting 11 by-elections which have arisen due to reasons such as the death of Members of County Assemblies (MCAs), Members of Parliament (MPs), and the elevation to Cabinet of former MPs Opiyo Wandayi (Ugunja) and John Mbadi (Nominated).

The Constitution stipulates by-elections be held within 90 days whenever a vacancy occurs in an electoral area.

However, the lack of a functioning electoral commission has made this impossible, leaving the country in crisis. Some constituencies, such as Banisa and Ugunja, have been without MPs for more than a year due to the stalemate in IEBC.

At the same time, Kisa East Ward in Khwisero Constituency in Kakamega has been waiting for IEBC reconstitution so that voters can elect their Member of County Assembly.