Delay in IEBC recruitment puts country on edge

President William Ruto could face challenges due to the delayed recruitment of commissioners to the Independent Electoral and Boundaries Commission (IEBC).

The issue of whether the IEBC should clear Deputy President-elect Kithure Kindiki has surfaced recently, with the matter now in court.

If the High Court, which is hearing a petition challenging the ousting of Deputy President Rigathi Gachagua, finds that the IEBC’s role in the nomination process is essential, the Head of State may be without a principal assistant for months. This could occur if the court upholds Gachagua’s removal from office.

Such developments could lead the country into a precarious situation, according to Law Society of Kenya President Faith Odhiambo.

“In the event something happens to the Head of State, who takes over? The Speaker of the National Assembly can only serve for a limited period before elections must be held, but we don’t have an IEBC to conduct such elections,” she said on Citizen TV yesterday, referring to Article 146 (2) (b) of the Constitution, which outlines the process for filling a vacancy in the Office of the President.

The provision states: “If the office of Deputy President is vacant, or the Deputy President is unable to assume the office of President, the Speaker of the National Assembly shall act as President, and an election to the office of President shall be held within sixty days after the vacancy arose.”

On Wednesday, US Ambassador to Kenya, Meg Whitman, also highlighted the risks posed by the absence of a fully functioning IEBC.

“IEBC’s ability to support democracy in Kenya is compromised without the recruitment of commissioners or parliamentary action to provide funding for voter registration, by-elections, and other electoral activities,” she stated after a meeting with IEBC CEO Marjan Hussein Marjan.

On Thursday,  Raila Odinga’s Azimio la Umoja-One Kenya coalition settled on lawyer Koki Muli-Grignon to represent the coalition in the panel tasked with selecting commissioners, following a long legal dispute.

This move means that the selection panel could soon be sworn in, allowing the recruitment process to begin, though it may take considerable time. Notably, the panel has no set deadlines for completing its work.

It has been 19 months since Irene Masit, the last of the Wafula Chebukati-led IEBC commissioners, was removed from office over her alleged involvement in attempts to interfere with the 2022 presidential election.

As a result, the country has been without a fully functioning IEBC for almost two years, stalling crucial electoral activities. For instance, Banissa Constituency has lacked representation since March 2023, following the death of former MP Kullow Maalim Hassan. Similarly, Ugunja, where former MP Opiyo Wandayi was appointed Energy Cabinet Secretary, and Magarini, where the election of former MP Harrison Kombe was annulled, have been left without MPs.

Under the law, by-elections should have been held within 90 days of these vacancies being declared. Moreover, the important boundary delimitation exercise, which should have occurred by March 2023, has also been delayed.

More than three commissioners are required for the IEBC to function. The Constitution mandates that boundary reviews take place every eight to 12 years, with the last one conducted in March 2012.

The political class has shown little urgency in reconstituting the IEBC, placing the matter on the back burner while addressing other priorities. Although President Ruto appointed a selection panel last year to recruit new commissioners, the process stalled.

Azimio opposed the process, particularly a change in the law that gave the president more control over appointing commissioners. However, through the National Dialogue Committee, Ruto and Raila eventually agreed on new legislation for appointing IEBC commissioners, which was signed into law three months ago. This agreement followed a period of nationwide youth-led protests.

Azimio had been unable to agree on a representative for the expanded selection panel (increased from seven to nine members), but a court ruling enabled Muli-Grignon’s nomination.

In an opinion piece published last year, Muli-Grignon argued that constitutional processes, such as the appointment of IEBC commissioners, should not be delayed due to political reasons.

“The process of appointing commissioners, removed after the 2022 elections, had begun even before the terms of the chairperson and other commissioners expired, but it was halted by politics. Compliance with the Constitution must not be suspended,” she asserted.

Indeed, political interference has often derailed the IEBC’s operations. Since 2007, there have been repeated calls to overhaul the electoral commission. After the disputed 2007 presidential election, whose outcome even then-Electoral Commission chair Samuel Kivuitu said he did not know, Raila Odinga’s opposition camp demanded significant reforms in the electoral process.

The Interim Independent Electoral Commission (IIEC), led by Issack Hassan, briefly took over from 2009 to 2011, before the current IEBC was formed in time for the 2013 general election.

Raila, who challenged the outcome of the 2013 presidential election, led efforts to remove Hassan, paving the way for Wafula Chebukati’s tenure. Chebukati resisted calls to resign after the annulled 2017 presidential election and eventually oversaw the 2022 polls.