Constitutional crisis looms due to lack of IEBC commissioners

The deafening silence by the government and the opposition on appointment of commissioners of the Independent Electoral and Boundaries Commission is concerning.

Although the IEBC secretariat has been fully constituted since March 2022, when the Chief Executive Officer/Secretary was confirmed, it cannot make key decisions that facilitate supervision of elections and referenda. The executive commissioners make all policy and other key decisions. The constitutional single six-year terms of the chairperson Wafula Chebukati, and members Boya Molu and Abdi Yakub Guliye, expired on January 17, 2023.

The vice chairperson Juliana Cherera, and members Justus Nyang’aya and Francis Wanderi resigned in December 2022 rather than face a tribunal appointed by President William Ruto to investigate their conduct during the August 9 General Election.

Ms Irene Masit was dismissed by President Ruto on February 27, 2023 following a recommendation by a tribunal that investigated her conduct during the election. The IEBC has been operating without commissioners for a year.

In 2023, Section 2 of the 2nd Schedule was amended to alter the composition of the IEBC Selection Panel and to provide that it shall consist of one man and one woman, nominated by the Parliamentary Service Commission, one nominee each of the Public Service Commission (PSC), the Political Parties Liaison Committee (PPLC), the Law Society of Kenya, and two persons nominated by the Inter-religious Council of Kenya.

This amendment raised a furore with pundits arguing that giving a slot each to PSC and PPLC grants a political advantage to the ruling party, which may influence those bodies although there was no evidence to back the argument.

The Selection Panel was appointed and by the deadline for applications for commissioner and chairperson of the IEBC on March 28, 2023, it had received 920 applications. However, President Ruto halted the selection process after the Azimio team called off demonstrations on April 2, 2023 to give dialogue between them, a chance.

It had been expected that the dialogue would provide an inclusive framework and format for the appointment of IEBC commissioners to pave the way for the Commission to conduct by-elections to fill vacancies in the National Assembly and various County Assemblies and review electoral boundaries.

Unfortunately, the results of the dialogue are still contested and nothing is settled regarding the appointment of commissioners and the reconstitution of the IEBC. The vacancies in the IEBC have far-reaching consequences. Although the returning officers for Parliament and County Assemblies are not commissioners, the secretariat of IEBC cannot conduct elections or by-elections. This is because decisions to allocate funding, procure materials, hire temporary staff (including their training), and equipment for the elections, facilitate the conduct, supervision, and observation of elections, and referenda are made by commissioners.

The returning officers can only act on the guidance of the commissioners on the logistical operations of the various aspects and activities in the electoral cycle. The commissioners also verify and forward the necessary communication and gazette notices regarding the elected representatives.

Therefore, while several tasks can be undertaken by the secretariat, many of the key electoral tasks require the decisions of the commissioners. This is why the IEBC secretariat has put several functions and activities on hold.

The continued delay in recruiting IEBC commissioners is undermining the constitutional functions of the commission and fundamentally impacts not just democracy but people in the constituencies and wards that do not have representatives.

For example, there is no one to disburse school bursaries and other benefits accruing from CDF and other facilities and these constituents lack representation, which is unfair and unconstitutional.

Article 89(2) of the Constitution provides that, the IEBC shall review names and boundaries of constituencies at intervals of not less than eight years, and not more than 12 years. The last review was in March 2012 and the latest date for the next review is March 2024, less than two months away.

The government swore an oath to protect and enforce the Constitution, it should be concerned that there is a real danger of constitutional crisis due to continued constitutional violations. The opposition will fail dismally in this regard too.