Inside trust deficit, legal challenges haunting IEBC

The country’s electoral body is in the eye of a legal storm for its failure to conduct a boundary review, tame loose-tongued politicians and laxity in restricting presidential election votes tallying to the constituencies.

The Independent Electoral Boundaries Commission (IEBC) is also facing a legal challenge for blocking MPs' recall.

Months after the commission got into office, it has found itself as a constant guest in the corridors of justice, with the next general election and the fate of the current August House being at stake.

This comes as the debate on whether the unmet boundaries review deadline took a new twist, with Health Cabinet Secretary Aden Duale disagreeing with the Prime Cabinet Secretary Musalia Mudavadi.

Following the contentious Finance Bill 2024, the commission received petitions to recall Members of Parliament.

Nevertheless, the Erastus Ethekon-led commission cited lack of legislation and a clear framework as the reason it is impossible to recall MPs before their term ends. It claimed that, following a High Court judgment that the Elections Act 2011 is unconstitutional, there is no law in place to facilitate the process.

It is out of the commission’s inaction that it has been sued, alongside Parliament and Attorney General Dorcas Oduor.

Duale said the issue of what to do with the boundaries was still live as the Supreme Court only declined to intervene on the basis that there was no fully constituted commission.

It, however, pointed out that after the new commissioners were sworn in on July 11, 2025, the commission could move to the same court for interpretation on if it could review the boundaries past the timelines.

“Therefore, there is no constitutional crisis. The Constitution has provided a lawful path and the Supreme Court has already explained how that path should be followed,” said Duale.

In the advisory opinion case filed by the IEBC chief executive officer, Marjan Hussein, the Supreme Court pointed out that there is a deep-rooted trouble with Kenya’s electoral process.

It observed that, from the Justice Johann Kriegler Commission formed after the 2007-2008 polls chaos to the litigation before courts as the country hurtled to the 2022 general election, one common and consistent theme emerged: Kenyans have a trust deficit with the IEBC.

“This deficit did not occur by accident; rather, it is the product of decades of politicisation of the electoral process, relentless attacks on the commission’s independence, and failure to conduct electoral reforms in good time and in good faith.”

“Leaders exercising delegated authority on behalf of the people, rather than fuelling this mistrust for short political gains, should channel their power and influence to address structural weaknesses, accountability and reinforcing public confidence, impartiality and competence of IEBC,” the bench headed by Chief Justice Martha Koome said.

Mudavadi had claimed that there is a danger of the election being annulled on the basis that the commission had not reviewed the boundaries.

Already, there is a case filed by lawyer Philip Lagat who wants the commission barred from holding any elections or referendum until such time as a review is done. Lagat argued that it would be unfair to hold an election without factoring in changes in population distribution, urban growth, and community interests.

He said that the commission should first review the number and the names of constituencies and wards, and then conduct an election.

Good governance

In the meantime, Laban Omusudi argues that the commission has shielded MPs from accountability by denying the electorate the chance and tools to enforce good governance, performance and representation.

“The deliberate failure or refusal by the first respondent, the IEBC, to operationalise the constitutional right to recall, citing the absence of enabling legislation, amounts to unconstitutional abdication of its responsibilities and subtle usurpation of the people’s sovereign power. Worst still, this position appears to conspire with the National Assembly’s long-standing failure to enact the legal framework,” argued Omusudi.

He asserted that misbehaving, non-performing or unethical MPs should find their way home before the five-year term ends.

He, however, was of the view that the commission and Parliament have created a vacuum that renders Kenyans helpless.

Omusudi’s case follows yet another one filed by the Law Society of Kenya, which urged the court to enforce ethics to tame loose-tongued politicians.

For the last 15 years, MPs and other politicians have hopped from rally to rally, spewing hate, insults, and animosity, yet they remain unpunished.

LSK, however, argued that MPs require binding ethics rules, with clear sanctions to rein in their rhetoric.

The society sued the commission, the Ethics and Anti-Corruption Commission (EACC), the Registrar of Political Parties, the Parliamentary Service Commission (PSC), the National Cohesion and Integration Commission (NCIC), and the Attorney-General.

LSK argued that NCIC should have long ago drafted a code of conduct for MPs and aspiring candidates to enforce decorum and decency in politics.

But in its 15 years of existence, the commission has failed to introduce binding rules or sanctions such as recall provisions, LSK contends.

The petition further accused NCIC, alongside the Registrar of Political Parties, of failing Kenyans by “not biting hard” against misconduct.

LSK wants the court to compel NCIC, IEBC, and the Registrar of Political Parties to table evidence within 30 days and publish it in the media, proving they have rules in place to extinguish hate speech by politicians.

“It is only the courts that can give back the Kenyan population the proverbial bell to put on the cat, given the fact that (the delegated) all respondent independent constitutional commissions have eschewed the responsibility to create a framework to enforce constitutional behaviour among elected State officers, as well as those affiliated with political parties fifteen whole years after their collective promulgation,” argued LSK lawyer Joseph Wasonga.

Wasonga cited Chapter Six of the Constitution, which obliges State agencies to uphold responsibility and integrity in public office. Instead, Wasonga said, the agencies have turned a blind eye to repeated misbehaviour by MPs.

The commission is also embroiled in a battle with the United Opposition and Busia Senator Okiya Omtatah over the presidential election tallying.

Kalonzo Musyoka, Rigathi Gachagua, Fred Matiang’i, Mithika Linturi, and Justin Muturi argued that once results are collated and announced at constituencies, the national tallying centre should adopt them without alteration.

According to them, re-tallying and re-verifying the results creates an opportunity for potential manipulation.

Their lawyer, Gitobu Imanyara, said re-tallying and re-verifying creates opportunities for manipulation and confusion over which results are final. With the election just over a year away, his clients are seeking an accurate and verifiable process.

Imanyara argued that the current legal framework allows parallel verification not anchored in the Constitution, creating a separate, superior process exclusively for presidential results.

IEBC has allegedly failed to verify results at constituencies before electronic transmission.

“There is no constitutional basis for treating presidential results differently. The uniform electoral architecture under Article 86 is being violated. The separate verification is arbitrary and discriminatory,” he said. 

The national tallying exercise has previously faced legal scrutiny.

In 2017, then IEBC chair Wafula Chebukati told the Supreme Court he required powers to correct forms 34B if they did not match forms 34A.

On the other hand, Omtatah argued that Section 39 of the Elections Act, Article 86 and Article 138 of the Constitution indicate that the results from the constituency level are final and binding.