It's time to review formation of the IEBC and its selection panel

IEBC chair Wafula Chebukati when he met with political aspirants before the August 2022 General Election. [Denish Ochieng, Standard]

On October 21st 2022, President William Ruto notified the public of impending vacancies in positions of chairperson and two members of the Independent Electoral and Boundaries Commission (IEBC).

Their six-year non-renewable term lapses on January 17th 2023. According to the IEBC Act, the process of replacing a chairperson or an IEBC member commences at least six months before the lapse of their terms or within 14 days of the declaration of the vacancies, with the appointment of a selection panel by the president.

The Act provides for the composition and appointment of the IEBC, the term and qualifications of the chairperson and the members of IEBC, its functions, employees including its secretary and its operations. Section 5 states that, the commission shall consist of a chairperson and six other members, yet article 250(1) of the Constitution provides that the commission shall consist of at least three, but not more than nine.

The Constitution requires that appointments to commissions and independent offices consider national values in article 10 and ensure the composition of the commission reflects the regional and ethnic diversity of the people of Kenya.

According to the Constitution, a member of a commission may serve on a part-time basis, though the members of IEBC have historically served on a full-time basis, because their Act states they can only serve on full-time basis.

Nevertheless, it should be anticipated that, since the commissioners do not themselves implement the daily operations of IEBC but serve at policy level, perhaps some time in the future we should expect to have part-time commissioners with a more strengthened Secretariat conducting elections.

Perhaps this may minimise politicisation of commissioners, their process of appointment and the manner in which they conduct elections. Interestingly, the chairperson of the commission is qualified for appointment if s/he is qualified to hold the office of judge of the Supreme Court.

However, the commissioners and the secretary must hold a degree from a recognised university and must have proven relevant experience in any the following fields- (i) electoral matters; (ii) management; (iii) finance; (iv) governance; (v) public administration; (vi) law; and must meet the requirements of Charter Six of the Constitution.

In addition, while the secretary must be a Kenyan citizen, a similar requirement for the commissioners was deleted in 2016, allowing non-citizens to serve as members of the commission. Also, the chairperson need not have any proven relevant experience in electoral matters and yet, elections and democracy crafts are specialised fields, which require one to have relevant expertise and experience for obvious reasons.

The first schedule of the IEBC Act sets out the procedure of appointment. The selection panel comprises seven persons as follows; two men and two women nominated by the Parliamentary Service Commission; one person nominated by the Law Society of Kenya; and two persons nominated by the Inter-religious Council of Kenya. The selection panel has been a permanent feature in the appointment of IEBC members. It was created following the promulgation of the 2010 Constitution and enactment of the IEBC Act.

Many believed it would be a transition arrangement after which the appointment process would be taken over by the Public Service Commission. This is because, the selection panel is temporarily established only for the purpose and disbanded after, it is not an independent body and is vulnerable to all kinds of influences and political machinations, while the Public Service Commission is a permanent and an independent constitutional commission protected by the law.

Also, members of the panel serve at the pleasure of their appointing bodies and they can be removed like we saw before. Finally, the public has never had an opportunity to scrutinise the criteria they use in grading interviews and cannot determine if it is objective and professional. It seems that, this could appear opaque and may raise issues of credibility and legitimacy in the process and its outcomes. Perhaps, it is time the IEBC Act is amended to do away with the Selection Panel and allow the Public Service Commission to take over this function.