Paralysis at the electoral agency has put two by-elections scheduled for July in limbo.
The Independent Electoral and Boundaries Commission (IEBC) has been operating without commissioners since the retirement of the chairman, Wafula Chebukati, and commissioners Abdi Guliye and Boya Molu on January 17.
The other commissioner were pushed out after a falling out over last year's presidential elections.
Former vice chairperson, Juliana Cherera, and commissioners Justus Nyang’aya and Francis Wanderi resigned after President William Ruto formed a tribunal to investigate their conduct. Irene Masit was removed on the recommendation of the tribunal.
IEBC currently only has a secretariat.
And it seems the commissioners may not be picked soon after Azimio la Umoja's seven-man team that to discuss the reconstitution of the commission with Kenya Kwanza side suspended bipartisan talks for seven days.
A selection panel that was to recruit the new IEBC team was put on hold by President William Ruto to give the talks a chance. Raila Odinga-led Azimio wants to be involved in the formation of the selection panel.
Although National Assembly Speaker Moses Wetang'ula declared Banisa seat vacant following the death of Kullow Hassan in an accident in March, the constituents will have to wait longer to get a new MP.
Voters in Kisa East Ward in Kakamega are also unrepresented after their MCA Stephen Maloba was stabbed to death
Wetangula’s ruling paved way for the electoral commission to conduct the Banisa by-election within 90 days, which should lapse by July.
“Pursuant to Articles 101 (4) (a) and 103 (1) (a) of the Constitution as read with section 16 (3) of the Elections Act, 2011, it is notified for the general information of the public that the seat of the member of the National Assembly for Banisa constituency elected under Article 97 (1) (a) of the Constitution has become vacant with effect from the 29th March 2023,” the April 20 Gazette notice states.
The law says the agency must consist of at least three commissioners.
High Court advocate Muthomi Thiankolu said article 250 of the Constitution stipulates that without the commissioners there is no IEBC.
"Nothing much can be done. It seems like the drafters of our Constitution did not envision such a scenario. So they may just have to wait until the process is complete."
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The delay has consequences. For example, students who depend on bursaries from the National Government Constituencies Development Fund might miss learning.
There is no judicial determination on if the IEBC secretariat can conduct a by-election.
According to last year's Supreme Court ruling on the presidential election petition, the issue on whether the commission comprises the commissioners only or together with its members of staff is still unresolved.
The judges wondered if the secretariat can conduct by-elections as there is no vacancy in the office of the returning officers.
Should the bipartisan team decide to pick another panel then the process will start afresh. In the first sitting, the panel will select its chairperson and vice chairperson, after which they invite applications.
The panel would then consider the applications, shortlist candidates and conduct interviews in public.
After the process is complete, the panel forwards two names for the chairperson and nine for commissioner slots to the President, who is expected within seven days to send to Parliament the names of the chairperson and six commissioners for approval.