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Court blocks IEBC from replacing its CEO Oswago

By | January 11th 2012

By Kepher Otieno

Mr James Oswago, the Chief Executive Officer of the Independent Electoral and Boundaries Commission has been handed a lifeline.

The High Court sitting in Kisumu has granted an injunction stopping his employer from proceeding with the recruitment of his replacement.

The Commission must refrain from advertising Oswago’s job until the suit that is the subject of the order is heard and concluded.

This development throws a spanner in the works for the IEBC that had hoped to conclude the exercise in February.

Justice Abida Ali issued the injunction after a successful application filed under a certificate of urgency by a voter from Vihiga County, Mr Ben Ombima who cited breach of contractual procedure by the IEBC as cause for the suit.

In submissions filed through lawyers Richard Onsongo and Sam Onyango, the plaintiff faulted what he claimed is a rush by the Commission to advertise Oswago’s job well before his current term is due to end.

Consequently, justice Ali gave the lead counsels a 21-day period to file a substantative application to determine the issues raised by the plaintiff, failure to which the case would be struck out.

She also told them to produce evidence supporting the application including when Oswago’s contract is supposed to expire.

The Constitution allows any Kenyan, regardless of status, to move to Court on behalf of the country’s 38 million citizens and challenge the state on matters of constitutionality that are of compelling public interest.

Ombima wants Oswago to remain in office until his term expires. The position was recently widely advertised in the local dailies and all copies of the adverts were adduced in Court as circumstantial evidence.

Vacancy announcement

Ombima is demanding that Commission for Implementation of the Constitution (CIC) chairman Mr Charles Nyachae direct the IEBC to withdraw the vacancy announcement, claiming it is in direct violation of sections 31(1) and 33 of the Sixth Schedule of the Constitution that touches on transitional and consequential provisions, or proceed to court.

Section 31(1) provides that a person who immediately before the effective date held or was acting in an office established by the old Constitution shall on the effective date upon which the current laws took effect, continue to hold or act in that office for the unexpired period.

Ombima says the IEBC overlooked this requirement.

In the advert for the CEO’s position, the IEBC announced it was also seeking to recruit two deputies and the deadline for the applications was on Wednesday.

Political science

The candidate must be a Kenyan with at least five years’ experience at management level in any of the following: electoral matters; finance; governance; public administration; law and political science. He or she must be a holder of a degree from a recognized university.

Applicants for the post must also be computer literate, and will have to be cleared by the Ethics and Anti-Corruption Commission, Criminal Investigation Department, Kenya Revenue Authority, Higher Education Loans Board and National Security and Intelligence Service (NSIS).

The move by the IEBC to appoint Oswago in an acting capacity for three months pending a fresh recruitment process is said to have caused disquiet in the Commission.

The differences between the chairman and the chief executive began in the days of the defunct Interim Independent Electoral Commission (IIEC).

Matters came to a head during a retreat at the Travellers Lodge at the Coast, which was meant to be an induction workshop for the new commissioner.

Mr Hassan is said to have caught the commissioners off guard when he said they also wanted to discuss Oswago’s position and asked that he leaves to allow discussions.

After Oswago left, Mr Hassan informed the commissioners that the IEBC Act required that the chief executive be recruited competitively.

The proposal, it is said, sparked protests from some commissioners who said the Transitional Clauses in Chapter 6 of the Constitution provide that those in position at the time the new Constitution is promulgated shall complete their terms.


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