President William Ruto and Opposition Chief Raila Odinga are faced with difficult choices as the country is on the brink of a constitutional crisis over the reconstitution of IEBC.
At the center of the confusion is whether to implement the February High Court decision that ordered immediate reconstitution of a new commission, or execute the bi-partisan talks report that calls for reconstitution of a new selection panel.
The nomination of the current IEBC selection panel led by Evangelical Alliance of Kenya General Secretary Nelson Makanda was at the centre of Azimio’s protracted street protests.
Azimio insisted the Makanda team — a product of amendments to the law by Ruto team — is biased and pro-executive.
As a result, implementing the court order could trigger the country into fresh anarchy and cause national instability.
On the other hand, appointing a new panel as proposed by the bi-partisan team could face legal hurdles as the process could again be challenged in court.
The political elite led by Ruto and Raila favour the implementation of the National Dialogue Committee report.
Last month, Makanda told the Star that they will proceed with the recruitment process.
However, nothing has been forthcoming from the team since.
“We are going to obey the court order. The court said we finish the process. They even used the word immediately. We will do that,” he said.
But Raila immediately rubbished the move as “hogwash”
"Until Wandayi and Kalonzo's report goes through Parliament, we cannot begin to speak about IEBC. As for the cost of living, our demand for lowering it remains," he said.
Political analyst Martin Andati told the Star that Ruto has no option but to yield to the NADCO suggestions.
“Ruto cannot ignore NADCO report, it is not something he (Ruto) wanted, circumstances force him into it,” he said on phone.
“If he goes ahead and ignores what NADCO has proposed then he will have problems in future.”
Rarieda MP Otiende Amollo said there is no inconsistency between the NADCO recommendations and the High Court order.
Otiende who was co-chair in the first bipartisan talks said the country can still have a new commission in place within 90 days as ordered by the Judge.
“Contrary to what some people think, this Report is actually not inconsistent with the judgement that was issued by the High Court just a fortnight ago. Indeed, in that judgement, the judge correctly observed that an issue like constitution of the panel is a political question,” he explained.
“This should be left to politicians under the political doctrines. The judge found it necessary to come to that judgement because the process was delaying.”
“Had we started this immediately the report was out, we would probably have forestalled that kind of decision although nothing is lost because the judge said this should be done within 90 days,” Otiende said.
The NADCO report currently before Parliament lays a roadmap for the reconstitution of the electoral agency hiring panel.
It has among others proposed a raft of amendments to the IEBC Act, 2011, that the selection panel be reconstituted.
The committee co-chaired by National Assembly Majority Leader Kimani Ichung’wah and former Vice President Kalonzo Musyoka, also suggested to expand the Panel from the current seven members to nine.
The yet to be reconstituted panel will comprise of one person from the parties forming the national government, minority parties, ICPAK and LSK.
The Interreligious Council of Kenya will nominate two.
“It is also noteworthy that the Committee has recommended a transitional clause that provides that the existing selection panel will cease to exist immediately on the Act's commencement date,” Ichung’wah said.
“But any person working in that Panel is eligible to be re-nominated by any of the nominating bodies.”
The vacancies at IEBC have been a national concern with pundits warning of impending constitutional crisis should their political truce continue to delay the process.
Concerns have already been raised that the country is operating on a dangerous ground with some constituencies and wards operating without elected leaders for more than a year.
Marsabit county MP Naomi Waqo said the country is treading on dangerous grounds.
She said the process should be expedited to address boundaries delimitation and pending by-elections.
“We are going into the second year after the general election and we have many gaps. There are many MCAs and MPs who have gone to be with the Lord. The earlier we reconstitute IEBC, the better,” Waqo said.
National Assembly Minority leader Opiyo Wandayi said only a bipartisan team with the confidence of the all the players will steer the hiring of the next IEBC commissioners.
He termed the Nelson Makanda-led Panel as one-sided and should pave way for a more inclusive team.
“I keep saying time and again that election in this country, just like in other parts of the world, is a matter of life and death, believe me or not,” Wandayi said.
“Therefore, the body that is to be charged with the responsibility of managing elections must be, like Ceasar’s wife, beyond reproach and enjoy the confidence of the wider majority of the populace.”
He said NADCO report has enough safeguards to ensure the new IEBC enjoys public confidence.
Moiben MP Phylis Bartoo said only a properly constituted IEBC can bring an end to post-election issues.
“I am impressed by the reconstitution of the IEBC Panel. This animal, IEBC, has been a thorn in the flesh for a very long time. I hope this time round we shall have both sides agreeing and coming up with names of individuals who have the interest of Kenya at heart,” she said.
