Judges’ verdict on IEBC quorum puts 17 by-election results in jeopardy

Lawyers James Orengo (left), Otiende Amollo (centre) and John Khaminwa chat outside the Supreme court building on Friday, August 20, 2021, during the judgement of the BBI appeal case. [Collins Kweyu, Standard]

Several decisions made by the Independent Electoral and Boundaries Commission (IEBC) could be up for legal challenges following the findings by the Court of Appeal that they have no quorum to conduct business.

Majority of the seven appellate judges found that the commission was not properly constituted and lacked the required quorum to approve the Building Bridges Initiative (BBI) process to amend the Constitution.

According to the judges, IEBC is an important commission that the threshold of commissioners required to transact business cannot be lowered to less than half of the seven members.

“The IEBC Act, which puts the minimum quorum at five commission, is still valid law and has not been declared unconstitutional. It is such an important commission that should have all hands on deck to carry out its business,” ruled Justice Francis Tuiyott.

The commission has been operating with only three commissioners for almost three years since four commissioners resigned.

The judges upheld the High Court findings that the commission was not properly constituted to verify BBI signatures and forward the draft BBI to County Assemblies for debate.

Justice Gatembu Kairu said that attack on the High Court ruling regarding the findings on IEBC quorum had no merit and should be dismissed.

Justice Patrick Kiage added that all decisions made by IEBC relating to the BBI and the proposed referendum was made without a quorum and were therefore null and void.

But in her dissenting opinion, Justice Fatuma Sichale ruled that the commission was properly constituted with three commissioners and could conduct business.

She said constitutional provisions that put the minimum number of commissioners at three supersedes the IEBC Act, which increased the minimum number to five.

Three IEBC commissioners resigned on April 16, 2018, claiming that they had lost confidence and had no faith in Chairman Wafula Chebukati’s leadership.

The members who resigned were Margaret Mwachanya, Paul Kurgat, and Consolata Nkatha.

Vice-chair Roselyne Akombe had left earlier, just eight days before the October 26, 2017 repeat presidential election, citing issues such as insecurity, political crisis as well as intimidation of IEBC staff.

Yesterday, the majority of Court of Appeal judges blamed the commission and the Attorney General for the failure to enact a legal framework to guide the referendum and verification of signatures.

A total of 17 by-elections have been conducted by IEBC, including the latest in Kiambaa and Muguga.

Yesterday’s ruling could open a pandora’s box, meaning that anyone can now move to court and challenge the legality of those declared winners in the mini-polls conducted countrywide in the last three years.

IEBC has gazetted forthcoming ward by-elections in Eldas constituency in Wajir, Kiagu (Imenti Central constituency) in Meru, and Nguu/Masumba (Kibwezi East) in Makueni slated for October 14, 2021.

The conducting of these by-elections will however be dependent on whether the Chebukati-led commission will have garnered the requisite quorum in accordance with the law.

Two weeks ago, President Uhuru Kenyatta nominated four commissioners to IEBC, namely Francis Wanderi, Justus Abonyo, Juliana Cherera, and Irene Cherop to fill the vacant positions. Parliament is expected to vet and pass or reject the names.

Additional reporting by Josphat Thiong’o.

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