The Independent Electoral and Boundaries Commission (IEBC) is the biggest winner of the Supreme Court’s judgment on the Building Bridges Initiative.
The finding that it had quorum to verify the signatures of the BBI now clears the way for the General Election preparations.
“Although paragraph 5 of the Second Schedule of the IEBC Act fixed the quorum at five commissioners, this cannot override the Constitution. Moreover, there was a judgement of the High Court in which... it was held that the IEBC was quorate and therefore the Commission cannot be faulted for following the said decision,” said Chief Justice Martha Koome.
Justice Koome, her deputy Justice Philomena Mwilu, Justices Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko revered the Court of Appeal and High Court’s verdict that the quorum should be more than three.
In the case, IEBC lawyer Prof Githu Muigai said a finding that the commission had no quorum would in turn have an effect on the August election.
“The issue of quorum is not academic. It has consequences. It is our very humble submissions that we have demonstrated there was quorum at the material time,” argued Prof Muigai. Court of Appeal majority judges found that the agency had no quorum to verify signatures by the BBI proponents since it did not have a minimum of five commissioners.
Six judges - Justices Daniel Musinga, Patrick Kiage, Hannah Okwengu, Gatembu Kairu, Francis Tuiyott, and Roselyn Nambuye held that after four commissioners left IEBC ought to have sought more since the number ought to be more than half.
“A more honourable stand is for the IEBC and Attorney General to make a clean breast of it and consider the former needed an urgent help and send an urgent SOS to the appointing authority to empower the IEBC to carry its key mandate. The Act requires immediate filling of commissioners that fall vacant,” said Justice Kiage.
In the Supreme Court, the former AG said there was no law prescribing the number of commissioners who should sit at any particular time to meet quorum. Former IEBC Vice-Chair Ms Consolata Nkatha, commissioners Ms Margaret Mwachanya and Mr Paul Kurgat left the commission on April 16, 2018.
Dr Roselyn Akombe left country barely a week before the presidential election re-run and announced her resignation on October 18, 2017. IEBC was left with Chairperson Wafula Chebukati, Mr Boya Molu and Mr Abdi Yakub Goliye. Mr David Ndii, Ms Jerotich Seii, Ms Jane Ngondi, Ms Wanjiru Gikonyo and Ms Ikal Angelei asked Supreme Court to uphold the finding that IEBC was not quorate.
Lawyer Ms Esther Ang’awa equated IEBC commissioners’ issue to a two-engine aircraft. When four commissioners resigned, she said, the plane had one engine to fly with, and at the time BBI team presented its signatures, the plane had crashed.