Blow to Raila as court orders recruitment of IEBC commissioners

The High Court has dealt Azimio leader Raila Odinga a major blow by ordering immediate recruitment of commissioners to the Independent Electoral and Boundaries Commission (IEBC). While dismissing by-partisan talks between Azimio and Kenya Kwanza on expansion of the IEBC selection panel and reconstitution of the commission for lack of constitutional and legal backing, Justice Thande Mugure ruled that the strict timelines to recruit the commissioners to conduct by-elections and boundaries review cannot wait anymore for politicians to agree. The judge directed the current IEBC selection panel to immediately continue with the recruitment of a new chair and six commissioners to avert a constitutional crisis. Justice Mugure observed that although the reconstitution of the IEBC is a political process, the prolonged stalemate between President William Ruto and Raila factions has paralysed the electoral agency functions. Ruto was in favour of the current selection panel chaired by Dr Nelson Makanda. On the other hand, Raila was against the panel insisting political parties must be involved in the selection of members. The IEBC selection panel comprises representatives from the Public Service Commission, Political Parties Liaison Committee, Law Society of Kenya, Parliamentary Service Commission and Inter-Religious Council of Kenya. The Judge said the law requires the commission to conduct by-elections within 90 days after a seat falls vacant. Justice Mugure observed that Banisa constituents have no representatives in Parliament after the death of their MP Kullow Maalim in March last year. At the same time, she said, the deadline to review constituency boundaries will lapse at the end of January but nothing seems to be moving from the panel's side. "I respectfully reject the notion that the political question doctrine should override the very explicit constitutional provisions and that the prevailing circumstances should be allowed to continue to threaten and infringe on rights guaranteed by the Constitution. As such, compliance with the Constitution should not be suspended for the sake of political expediency," said Justice Thande. Further, she was of the view that although IEBC's recruitment process was halted to pave way for by-partisan talks between Kenya Kwanza and Azimio, the deadlines set by the Constitution supersede the truce being sought. The judge argued that ordering for recruitment of the IEBC chair and commissioners was justified as the talks are not anchored in the Constitution. "The holding of by-elections in Banisa constituency is a constitutional process with strict timelines. Similarly, the review of the names and boundaries of electoral units has strict timelines," she said. Justice Thande reasoned that since the deadline for the said review is looming, the threat of violation of the provisions of Article 89 of the Constitution is real, and that establishment, composition, appointment and terms of office of commissioners of the IEBC is stipulated in the Constitution. "As such, compliance with the Constitution should not be suspended for the sake of political expediency. The intervention of this court is therefore justified, more so, because the bi-partisan talks are, to the best of my knowledge, not anchored in either the Constitution or the law," she stated. A fully constituted commission is required to review the names and boundaries of constituencies at intervals of not less than 8 years, and not more than 12 years. Any review must however, be completed at least 12 months before a General Election. The last review was done in March 2012. Therefore, the next ought to be conducted and concluded by February 2024. The case was filed by Adan Mohammed who argued that failure to recruitment IEBC commissioners in time had violated the rights of constituents who are meant to go for a by-election and affected the timelines for boundaries review. Mohammed sued the Attorney General, the IEBC selection panel and Parliamentary Service Commission (PSC). The AG filed grounds of opposition but later withdrew them stating that he would address issues of law in his submissions. However, the court found that he never filed the same. The selection panel argued that the High Court had no powers to intervene in a political process, a position that was taken by National Assembly. IEBC however supported the case arguing that lack of quorum had hampered with its operations. It said that it could not conduct by-elections, or review boundaries. After being sworn in on March 3 last year, the selection panel commenced the recruitment process. They advertised and called for applications to be received by March 28, 2023. The exercise has however not been completed. The section panel was supposed to call for applications, conduct interviews and forward the names of shortlisted candidates for the IEBC jobs to the President. The president then nominates the commissioners before forwarding their names to the National Assembly for vetting before appointment. The panel however stopped working following an agreement between Azimio and Kenya Kwanza. In his opposition to the panel carrying out its duties, Raila said its appointment was skewed in President Ruto's favour. The two coalitions settled for talks for the first round that failed and one of the demands that Azimio had to the National Dialogue Committee (Nadco) was fresh reforms in the IEBC secretariat. Then the second round of talks saw the formation of a dialogue committee co-chaired by Wiper party leader Kalonzo Musyoka and National Assembly Majority Leader and Kikuyu MP Kimani Ichung'wa. The committee agreed to prioritize IEBC restructuring and auditing of the 2022 presidential election results. The dialogue committee agreed to pause the work of the panel to give the talks a chance since reconstituting it was one of the issues to be addressed. Before stopping its work, the selection panel's chairperson Makanda told the media they received 925 applications for IEBC jobs. Of these, the chairperson's post attracted 25 applications while the remaining 900 were for the position of six commissioners. The law guides the process of recruiting the panel but Raila wanted all political parties included in the process of selecting members to sit on the panel. IEBC was left without commissioners after the chairperson Wafula Chubakati, Boya Molu and Professor Abdi Guliye retired. The other commissioners Juliana Cherera, Justus Nyang'aya and Francis Wanderi resigned after President Ruto appointed a tribunal to investigate their conduct in the contested 2022 presidential elections. Irene Masit chose to go to the tribunal hearing which recommended for her removal with President Ruto firing her.

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