Kenya Kwanza and Azimio truce key for fair and acceptable IEBC

In my last article, I expressed concerns about a looming constitutional crisis if the electoral commission is not reconstituted to undertake its constitutional functions.

I stated that, Article 89(2) of the Constitution provides that, the Independent Electoral and Boundaries Commission (IEBC) shall review boundaries of constituencies at intervals of not less than eight years, and not more than twelve years.

The last review was in March 2012 and the latest date for the next review is March 2024, less than two months away.

Therefore, reconstituting a bi-partisan Selection Panel and recruiting IEBC commissioners was urgent to avoid a constitutional crisis. There are several constituencies and wards where IEBC was supposed to conduct by-elections and whose constitutional timelines have expired, denying the voters in those areas their rights of representation and other benefits.

This is why I welcome the decision of Justice Mugure Thande to order the immediate recruitment of new IEBC commissioners including its chairperson and agree that the political truce between Kenya Kwanza and Azimio-One Kenya Alliance that followed the 2023 latter’s stoppage of street demonstrations, does not override the Constitution.

The Constitution cannot be suspended based on political exigencies no matter their importance to the stability of the country instead, political exigencies should happen to guarantee compliance with the Constitution.

The President and his government swore to defend the Constitution while the opposition and all Kenyans are obliged under Article 3(1) to respect, uphold, and defend it.

Furthermore, Articles 2(1) and 2(2) state that the Constitution is the supreme law of the Republic and binds all persons and State organs at both levels of government and reiterate that no person may claim or exercise State authority except as authorised by the Constitution.

This means any political truces must comply with the Constitution and derive legitimacy from it especially this one, since it is neither anchored in the Constitution nor legislation. Both the government and the opposition are obligated to re-constitute the IEBC to enable it carry out its constitutional functions within the required timelines.

If we go by previous utterances of the Azimio team, this process may have to begin with the reconstitution of the Selection Panel itself in which both political sides would agree on picking panelists they believe can represent bipartisan interests if they have issues with the already existing panel.

The IEBC Selection Panel was appointed by President William Ruto through a Gazette Notice No. 2641 Dated 27th February 2023 and took the oath of office on 2nd March 2023, at the Supreme Court, before the Chief Justice and President of the Supreme Court, Hon. Lady Justice Martha Koome. 

They immediately commenced the recruitment and by 30th March 2023 began preparing the long list of applicants after an entire month of receiving applications for the positions of chairperson and commissioners.

They held stakeholders’ meetings to help them be more effective in their work and they were about to retire to continue the recruitment process when they were stopped to give the national bipartisan talks a chance.

A report of the bipartisan talks was released but it appears like broad consensus on the content and follow-up is lacking, which has effectively delayed its implementation. The fate of the already constituted IEBC Selection Panel was hanging in the balance until Justice Thande ordered it to resume the recruitment process.

It is not clear what may happen because the Azimio team led by Raila Odinga had opposed the current composition of the Selection Panel wishing it to more representative of political parties who, it says, should be more involved in the process of recruiting IEBC chairperson and commissioners.

Undoubtedly, the recruitment process is urgent, at the very least to commence the boundary delimitation process to beat the March 2024 deadline and conduct long-overdue by-elections.

Nevertheless, the recruited commissioners should enjoy the confidence and trust of all political actors and if one side of the political divide is unconvinced about them, then this can occasion political challenges in future that are best avoided now.

For immediate traction to occur, both sides of the political divide must demonstrate committed political goodwill and work in a bipartisan manner to facilitate the recruitment and fast-track the review and demarcation of electoral boundaries.

The government must provide adequate budget to IEBC to carry out all the outstanding constitutional functions.