Trouble with IEBC as uncertainty abounds over pending mini-polls

The delay in reconstituting the commission has left voters and aspirants confused. [Wilberforce Okwiri, Standard]

The controversies surrounding the reconstitution of the Independent Electoral and Boundaries Commission (IEBC) are denying Kenyans their right to representation as impending by-elections cannot be held without a fully constituted electoral body.

IEBC has been operating without commissioners since the retirement of chairman Wafula Chebukati, and commissioners Abdi Guliye and Boya Molu on January 17.

The other commissioners, Juliana Cherera, who was the vice chairperson, 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.

Delay in reconstituting the commission has left voters and aspirants in places requiring a by-election confused.

Senior IEBC officials admitted to The Standard that they are unable to conduct any business because the commission only has a secretariat that cannot handle elections.

Replacing the commissioners lies with the bi-partisan committee that brings together the opposition coalition Azimio la Umoja One Kenya and the ruling coalition, Kenya Kwanza.

Article 101 of the Constitution stipulates that a by-election ought to be held within ninety (90) days of the occurrence of the vacancy in the said office. However, this is yet to happen in several constituencies that have been affected by deaths and court cases since last year's General Election.

But as the stalemate continues, candidates, voters, and affected political parties have been thrown into a state of anxiety and uncertainty, effectively paralyzing any campaign plans.

So bad is the situation that aspirants have been thrown off the campaign grid and cannot plan their activities because of the failure of IEBC to release its calendar for the by-elections.

The situation has also affected nominated MCAs, whose nominations are subject to confirmation by the electoral body before they can start undertaking their roles.

Constituencies affected by the IEBC stalemate include Barisa in Mandera, at least four wards, and a few nominated MCAs.

In Barisa, residents have not had an MP since March this year.

For county assemblies, several wards remain unrepresented since the deaths of their MCAs.

For instance, in Nyamira County, Nyamaiya ward remains without an MCA following the death of Elijah Osiemo, who also served as the Majority Leader. He died in a road accident in August.

Another mini-election is expected at Nyansiongo ward in Borabu Constituency where a petitioner won the case challenging the election of Denis Kebaso who was elected on a Wiper Party ticket.

On the other hand, petitioner Denis Matundura is also awaiting a nod from the electoral body for his confirmation after he successfully petitioned his party over alleged skewed nominations.

Matundura is expecting the IEBC to do a fresh nomination after the court revoked the appointment of Dickson Machungo as a youth representative to the House.

The court had made a ruling that ODM and IEBC made an error in nominating Machungo as a youth representative when he was above the age bracket of a person who can be classified as a youth.

In Tana River County, Chewani ward residents have not had representation following Hamisi Idd's death in June. He also died in a road accident.

Mumbuni North ward in Machakos is also vacant after its holder died in August. In Kakamega, the Kisa East ward is also without a representative after its former holder, Mr Stephen Maloba, was stabbed to death in April.

Observers believe the stalemate is disastrous and a big blow to taxpayers who are missing out on their democratic right to be represented by a leader. However, they admit the commission cannot conduct any by-elections at the moment.

Political analyst Mark Bichachi says the law recognises that the minimum number of commissioners to be three.

"The commission cannot conduct business with less than three commissioners," Mr Bichachi says.

According to Bichachi, it is, therefore, impossible for IEBC to function, especially given that it also lacks a substantive chairperson.

"It is also not sound for it to hold any election as currently constituted as they may easily be taken to court because IENC is not a fully constituted commission," the analyst says.

He thinks it is not prudent for IEBC to conduct any election or boundary business until the commission is constituted.

Experts say the wait could be longer given the state of affairs regarding the reconstitution of IEBS.

They are not ruling out the prospects of someone challenging the reconstituted office should the government speed the process. 

Strategic communications expert Barrack Muluka says IEBC ought not to conduct by-elections. "There is a need to establish a strong tradition of fidelity to the rule of law," Dr  Muluka says.

Constitutional lawyer Bruce Odeny says the Raila election petition confirmed that the absence of IEBC commissioners does not prevent IEBC from undertaking its normal operations that fall within the secretariat.

"What IEBC cannot do in the absence of the commissioners is holding or presiding over elections," Mr Odeny says.

He says the delays by the commission to conduct by-elections in places where members died can be attributed to the lack of commissioners.

"They fear proceeding to conduct the elections only for an election court to nullify the outcome on lack of commissioners," the lawyer explains.

In Nyamira, delays in the reconstitution of the IEBC have caused an uproar in Nyamira County, where two by-elections and two petitions are pending.

In Nyamaiya ward, aspirants keen on the seat have complained over the lack of communication from the commission in regards to the by-elections.

Chris Osiemo, a brother of the late Nyamaiya MCA, area clinician Boniface Kegusu, and KTDA Director Thomas Nyandieka are among those who have shown interest in the seat, but the absence of the electoral body seems to delay their ambitions of vying for the seat.

“We know that the government is doing something to address the issue of reconstitution of IEBC. What we pray for is that the process is hastened for the interest of the people who should be represented in the assembly,” Kegusu.

Osiemo said the void that electoral areas are experiencing should be filled as soon as possible for continuity of development.

“It is sad that we don’t have IEBC properly constituted and that some Kenyans can be disadvantaged for a longer time to have their development interests continued from where, for example, those who died left them,” Osiemo said.

Nyandieka said pressure from locals to have their interests represented at the county assembly is huge and that it will be unfair for any future delays in the reconstitution of the electoral body by the Government.

“Any further delays in reconstituting IEBC will be an insult to the people who have no representatives to respective Houses who should champion their rights even though they are paying taxes,” Nyandieka said.

UPA Party Chairman Nyambega Gisesa said the party was keen on fielding candidates in all the seats that have attracted by-elections.

“As a party, we are equally concerned by the situation where we foresee a long absence of the electoral body that can take charge of elections. We want to assure Kenyans awaiting the elections that we will give them formidable candidates,” Nyambega said.

According to the Registrar of Political Parties, Ms Anne Nderitu, the mandate to conduct the by-elections lies within the doorstep of IEBC. She claims the by-elections should be done as soon as possible.

"There is the lack of commissioners that is preventing them from moving with certain issues that need to be done by the commission," Ms Nderitu says.

She admitted that several constituencies affected by the stalemate are disadvantaged.

"That is why IEBC is supposed to try as much as possible to conduct the by-elections as soon as it is practically possible," she adds.

It remains to be seen how soon the commission will be reconstituted as voters continue to wait for representation in several areas across the country.

 (Additional reporting by Stanley Ongwae and Anne Atieno)