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New twist as IEBC appeals BBI judgement

By Kamau Muthoni | May 21st 2021

From left- Justices Teresia Matheka, George Odunga, Joel Ngugi, Jairus Ngaah and Chacha Mwita at the High Court in Milimani. [Collins Kweyu, Standard]

Independent Electoral and Boundaries Commission (IEBC) has appealed High Court’s verdict on the Building Bridges Initiative (BBI).

The electoral commission has framed its appeal in four thematic areas as its grievances against the Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresiah Matheka’s verdict.

The Wafula Chebukati led commission challenged the judges’ findings on quorum, voter registration, verification of signatures and public participation.

On the quorum, the commission has faulted the lower court for finding that it had no quorum to verify the signatures brought by the BBI task force.

According to IEBC, the judges departed from an earlier judgment by Justice Wilfrida Okwany that three commissioners could still legally run the electoral body.

The five judges ruled that IEBC could only legally operate when it has a quorum of five commissioners, stating that although the Constitution set the quorum for the commission to three, Parliament increased the minimum number of commissioners at IEBC to five.

“The High Court erred in finding that IEBC lacked quorum to verify signatures,” the over 7000 pages appeal read in part.

Section 5 (1) of the IEBC Act provides that the IEBC shall consist of the Chairperson and six other commissioners. Section 8 provides that the conduct of the IEBC’s business should be in accordance with the Second Schedule to the Act.

The judges concluded that IEBC did not have this quorum at the time it made the consequential decisions related to the Constitution of Kenya Amendment Bill, and that all the decisions they made in relation to the proposed BBI constitutional amendment were invalid, null and void.

On the other hand, the commission argues that a decision by Justice Wilfrida Okwany that quorums in IEBC should vary- when she was determining a case filed in 2018 seeking to block by-elections in Baringo South, North Kadem (ward) and in Bobasi Chache (ward).

In the case determined by Justice Okwany, the petitioner argued that the Commission had no quorum hence cannot carry out any legal function or make decisions, but Justice Okwany dismissed the case and found that the minimum commissioners cannot be a constant number.

IEBC has also faulted the High Court for finding that it ought to have authenticated the signatures brought by the BBI proponents. It asserts that it followed its own internal processes and the law by first inviting any person aggrieved with his or her signatures being on the list to challenge the same.

It adds that the period given was adequate for anyone to come forward to either contest that their signatures were either forged or they were forced to sign the forms.

The Commission’s case is that among other things, the process involved public participation in which it ascertained that BBI journey involved holding meetings in all 47 counties. Among those said to have participated in the process include churches, Judiciary, Labour unions, lobbies, minority groups, and the private sector.

IEBC says the signatures were more than the required threshold and therefore it moved the Bill to the 47 County Assemblies to pass.

On January 26, 2021, IEBC said it had verified 1 million signatures as required by the Constitution. The IEBC’s contention is that verification is not authentication.  As such, the argument is it ought to ensure the minimum number set in the Constitution and not seek to authenticate the signatures.

The second part of its mandate, it says, is the referendum mandate where it needs to subject the Bill to a referendum.

Meanwhile, it has also challenged the High Court’s finding that it could not carry out a referendum without voter registration. According to the Commission, the exercise is continuous, adding that the High Court should not have tied it to the referendum.

It also faults the judges finding that it had not carried out voter sensitisation. According to IEBC, there was no evidence for the allegation. It accuses judges of going beyond their powers and entertaining cases that had been passed by events.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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