Crisis looms over hiring of new IEBC chiefs

President William Ruto's shaky truce with Azimio leader Raila Odinga is turning out to be costly for the nation, which is now staring at a constitutional crisis over the absence of electoral commissioners.

The delay in recruiting new Independent Electoral and Boundaries Commission (IEBC) chairman and commissioners has seen Banissa constituency and three wards lack representation due to delays in holding a by-election in the area.

Its former MP Kullow Hassan Maalim died after being hit by a motorcyclist in Nairobi in March last year, is already underway. 

A by-election is supposed to be held within 90 days from the declaration of a vacancy as prescribed by Article 101 of the Constitution.

Apart from delayed by-elections in Banissa and three wards boundary delimitation deadline is fast approaching.

Nearly a year after the last of the commissioners, Irene Massit, left the IEBC, the agency lacks all seven commissioners.

Constitutional lawyer Duncan Okatch warns that the delay infringes on the right to representation of the affected populations.

"The Constitution envisages some circumstances where time is prolonged but it does not mean that it should be indefinite," said Okatch.

At the same time, without a commission in place, the IEBC cannot draw new constituency boundaries and decide their names.

The Constitution requires that this exercise is done at intervals of between eight and 12 years.

IEBC conducted the last delimitation in March 2012, meaning that the latest such an exercise can take place is March 2024, a target the electoral body is unlikely to meet.

But this will not be the first time the deadline will be missed. The late Samuel Kivuitu's Electoral Commission of Kenya did not alter boundaries in 2005 when the review fell due.

In an effort aimed at having new boundaries ahead of the 2022 elections, IEBC had begun the delimitation process in 2019 but it failed to materialise. Delimitation must take place a year to the General Election for the new boundaries to apply.

Some constituencies that fail to meet the population quota face the danger of being scrapped. During the last review, the threshold of constituencies was a population of 130,000 people.

The recruitment of new commissioners was put off indefinitely following the agreement between President Ruto and Raila to set up the National Dialogue Committee (Nadco) to address, among others, the electoral body's reconstitution. 

Lawyer Suleiman Bashir proposes timelines within which commissioners should be replaced.

"You cannot accuse the president of violating the law because there are no timelines in our laws," he said.

Ruto had appointed a seven-member panel led by clergyman Nelson Makanda but Azimio demanded that its recruitment be halted, following a change in law that would see the president wield more power in the selection of new commissioners.

Raila scored big following resolutions by Nadco to overhaul the IEBC selection panel, granting his wishes of giving parties more say.

 The Nadco team, led Wiper Leader Kalonzo Musyoka and National Assembly Majority Leader Kimani Ichung'wah, proposed to increase the composition of the panel from seven to nine members.

Despite a resolution by the ODM to adopt the Nadco report as is, constant wrangles between Ruto and Raila and within Azimio threaten meaningful progress in its implementation.

In an op-ed published in the Standard last September, lawyer and rights activist Koki Muli Grignon argued that constitutional processes should never cede ground to politics.

"The process of appointing commissioners, removed after the 2022 elections, had commenced even before the terms of the chairperson and other commissioners expired but it was arrested by politics... compliance with the Constitution must not be suspended and the review of boundaries should proceed therefore, IEBC should be reconstituted soonest and before March 2024," she argued. 

Law Society of Kenya President Eric Theuri argued the political class needs to allow the reconstitution of the IEBC to preserve the gains of the Constitution.

"We are tempting God in a very dangerous way because were anything to happen that would require an election to be conducted then we would find ourselves in difficult circumstances," said Theuri.