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BBI verdict: Differences in issue of IEBC quorum arise

By Betty Njeru | August 20th 2021

Court of Appeal Judges from left: Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembe and Francis Tuiyott. [Collins Kweyu, Standard]

Two of seven Court of Appeal judges have differed in their judgment on whether the Independent Electoral and Boundaries Commission (IEBC) met quorum when collecting the BBI signatures.

Judge Francis Tuiyott first submitted that the statutory composition of the commission is seven members, and anything less than-only weakens the commission.

In his judgement, the Appellate judge said that at the time of verifying signatures collected from the Building Bridges Initiative (BBI) drive, the electoral agency had the lowest number of commissioners required.

"IEBC was not quorate when it embarked on the business of verifying the BBI signatures on membership of only three,” the judge ruled.

He was of the school of thought that the lack of quorum could lead to the public losing confidence in the neutrality of the commission, and that the membership of the IEBC was affected by several factors including gender disparity.

“IEBC should be in its full complement of members and should carry out its functions with all hands on deck. To hold that the quorum could be anything less than half of the membership of seven is to weaken the commission.

But Justice Fatuma Sichale, who began her judgement minutes after 11 am on Friday, held that even with three members, the commission was constitutionally compliant.

The “IEBC as is currently constituted with three members cannot be said to be not be constitutionally compliant,” Justice Sichale said.

She also ruled out High Court judgment on the issue of signature verification saying it did not require the IEBC to have five to seven members.

 “The issue of verification of signatures is not a matter requiring a policy decision that requires the IEBC to be quorate,” she said.

Justice Gatembu Kairu, questioned whether IEBC discharged its mandate properly under Article 257 (4) of the IEBC Act.

He submitted that the commission submitted the list of signatures in support of the initiative on its website on January 21, 2021, whereas the closing date for scrutiny and for any objections to be taken was January 25.

“After actual verification of signatures and documentation, the compiled list of supporters was published in the commission’s website for information and verification for two weeks. Publishing the list during the weekend is clearly in violation of IEBC’s own prescribed timeline of two weeks,” Kairu said.

He further ruled that the commission was not properly constituted during the process of signature verification.

“IEBC was not properly constituted when verifying signatures and conducting its mandate in regard to BBI. The Commission’s Act places quorum at five.”

A seven-judge bench comprising of Court of Appeal President Daniel Musinga, Justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott is delivering the verdict on the BBI appeal case today.

So far, three judges have submitted their judgment on the most contested issues in the case, among them: Basic structure doctrine and its application to Kenya, the proposed new constituencies, public participation, IEBC’s lack of quorum, popular initiative and the role of the President in the BBI. 

All seven judges are to read their own judgements.


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