In a perfect case of poisoned chalice, the electoral body commissioners are to be sent packing immediately after conducting the proposed referendum even as Parliament seeks to fill positions of the four commissioners.
Already, there is push and pull over whether to recruit more commissioners to meet the mandatory seven or disband the Wafula Chebukati-led Independent Electoral and Boundaries Commission (IEBC).
The jostling comes at a time the electoral commission is also supposed to begin boundaries review and delimitation.
The Building Bridges Initiative (BBI) report that was released in December last year, called for disbandment of the commission and new commissioners be picked to conduct the 2022 General Election.
National Assembly chair for the Justice and Legal Affairs committee William Cheptumo said they will start replacement of the four commissioners who resigned in 2018.
After the disputed 2017 election that was later nullified by the Supreme Court, former commissioner Rose Akombe resigned in a huff complaining over lack of independence of the agency.
IEBC vice chair Consolata Maina, commissioners Paul Kurgat and Margaret Mwachanya, also left months later citing similar claims. This left Chebukati with two commissioners Boya Molu and Prof Abdi Guliye. Now allies of Deputy President William Ruto and ODM leader Raila Odinga have differed over the fate of the electoral commission.
Mr Cheptumo insists they will fill the vacant positions while Siaya Senator James Orengo yesterday said all they needed was to have the team conduct the referendum before they are sent home as recommended by the BBI report.
“The referendum will preside everything else and we may have to live with the current IEBC to conduct the referendum,” said Mr Orengo.
The senator said it is important for delimitation of boundaries to await the outcome of the referendum on whether the 290 constituencies are to be retained.
The BBI report proposes that all the 290 constituencies be retained, including protected seats because they have become key for representation of thinly populated areas.
President Uhuru Kenyatta has not declared the positions left by the commissioners vacant to date. Article 250 of the Constitution provides that the commission shall have at least three but not more than nine, members.
But Section 5 of the IEBC Act says the commission shall consist of a chairperson and six other members appointed in accordance with the Constitution and the IEBC Act.
The three remaining commissioners have been using the Constitution to justify their quorum.
The current commission was set up after a political deal between Jubilee and National Super Alliance (NASA) under a parliamentary panel that was co-chaired by Meru Governor Kiraitu Murungi and Orengo.
“In my personal view, the current IEBC should be dissolved because it carries the sins of the last presidential election. They have continued keeping away the data in the server to date yet it needs to be laid out in the open,” Orengo said.
Yesterday, the Siaya Senator said the IEBC commissioners are capable of conducting the referendum especially if questions are close ended (Yes or No).
“IEBC will not have a reason to conduct a fraudulent referendum because only one result will be relayed from the ground. It is straightforward,” he added.
The National Assembly had started the process to fill the vacant positions with the Parliamentary Committee on Justice and Legal Affairs by working on amendments to the Independent Electoral and Boundaries Commission Act.
The first appointment of commissioners upon the commencement of section 5 of the IEBC Act enacted pursuant to the Election Laws Amendment Act, 2016 cannot be used for future appointments.
“The responsibility IEBC has is immense and we cannot afford to waste time overhauling the agency now, we must learn to give room to organisations to operate independently,” said Cheptumo.