•The existing law provides that whenever a vacancy occurs in the office of the chairperson, the vice-chairperson shall act as the chairperson.
•Where the positions of chairperson and vice chair are vacant, the members of the commission are to elect an acting chairperson.
Image: Reuters
Lawmakers have backed a proposed law which bars IEBC vice chairperson from taking up the role of chairperson in case of a vacancy.
The IEBC (Amendment) Bill, 2024, proposed under the National Dialogue Committee (Nadco) provides that no other member of the commission can take up the role.
The proposed law seeks to delete section 7A of the IEBC Act which grants the vice chairperson and members a chance to act when there is no substantive chairperson.
The existing law provides that whenever a vacancy occurs in the office of the chairperson, the vice chairperson shall act as the chairperson.
It says the person taking over shall exercise powers and responsibilities of the chairperson until a new chairperson is appointed.
Where the positions of chairperson and vice chair are vacant, the members of the commission are to elect an acting chairperson from among themselves.
Such a member is empowered to act as the chairperson and exercise powers of the seat until a substantive holder is identified.
While at it, such members – including the vice chairperson, acting on behalf of the chair are not required to be lawyers.
The changes were introduced in 2017 shortly after the Supreme Court nullified President Uhuru Kenyatta’s second term win following a petition by ODM leader Raila Odinga.
At that time, the coalition reportedly felt uncomfortable with then IEBC chairman Wafula Chebukati solely calling the shots at the electoral agency.
The opposition at the time insinuated that the amendments were that Consolata Nkatha takes up some roles where chairman was uncooperative.
But in 2022, President William Ruto’s troops had issues with four former IEBC commissioners led by former Vice Chairperson Juliana Cherera, who opposed their win.
Cherera, Justus Nyangaya, Francis Wanderi and Irene Masit said they did not agree with the outcome.
They accused the chairman - and by extension their two other colleagues Boya Molu and Abdi Guliye, of bulldozing his way and sidelining them.
During the inquest into the events, Chebukati accused the four commissioners of attempting to usurp his role as chairman and declare parallel results.
In Nadco process, the provision has been seen as detrimental and has since been deleted in the proposed law under consideration by MPs.
Majority leader Kimani Ichung’wah and his Minority counterpart Opiyo Wandayi said the provision is to align the definition of chairperson with the judgement of the High Court.
In 2018, the courts made a finding that it was unconstitutional for the chairperson or any other commissioner to exercise the chairperson’s powers on reasons of absence.
The decision in the case by Katiba Institute was that the provision allowed someone not qualified under the constitution to take the office of chairperson.
The judges held that the provision weakened IEBC and affected its institutional independence owing to the powers granted to commissioners.
But experts have disagreed with the proposal saying it was a recipe for a crisis of monumental proportions at the IEBC.
The Kenya Law Reform Commission raised concerns that while the bill's suggestions are in line with the ruling, the proposed deletion raises fundamental issues.
For the commission, there will be a problem despite the court decision having informed the proposed changes.
“The deletion implies that the chairperson cannot designate a member to act as chairperson,” it said.
KLRC’s central concern is about how the commission will conduct business in circumstances where the chairperson is unable to attend to duties.
It also warned that setting the quorum of members at five would mean no business can proceed when less than that number is in post.
IEBC operated with three commissioners including the chairman for a long time in the period leading to the August 2022 general election.
A court ruled that they were properly quorate and any two of them could be counted as a majority.
Whereas Ruaraka MP TJ Kajwang’ hinted that section will be changed, the report of the Justice and Legal Affairs Committee has not taken an express stand on the suggestions.
“In this Bill, you [Nadco] would have created a big issue of the person called chairperson. We would have made a mistake and built a chairperson who is everybody and nothing would move if he’s not there,” he said.
Kajwang’ said the courts may have their decision but they are not practitioners in the field of politics, which the IEBC law is central to.
The Interreligious Council of Kenya also proposed that the clause be amended to enable vice chairperson to act in the absence of the chairperson.
They said this will help avoid a lacuna in the event of a vacancy in the office of the chairperson.
JLAC, in its report to Parliament, however, has not given its position on the matter despite taking note of the concerns of the Kenya Law Reform Commission.
IEBC has supported the Bill’s proposal to deny the vice chairperson and members the power to act in the absence of the chairperson.
“The appointment of chairperson is conducted and published separately. A member, therefore, may not take up the seat in case of a vacancy,” CEO Hussein Marjan said.
In the ensuing debate, Wandayi urged that there should be no amendments to the law as was proposed by the Nadco team.
“This is negotiated legislation, the first of the nine in Nadco and we expect it to be passed as is,” he said.
Wandayi said despite the deletion, the Bill has a saving grace since the chairperson will not be the sole decision maker in IEBC processes.
“We have provided in the bill that any decision that is not unanimously reached will have to be by the majority of members,” he said.
“Unless a unanimous decision is reached, a decision on any matter before the Commission shall be by the concurrence of a majority of all the members of the Commission,” the IEBC Bill states.
The amendments also set timelines within which the nominating bodies and the President have to set up the selection panel.
Bodies nominating representatives will have to do so in 14 days of the call for applications and the President will have seven days to appoint the team after receiving the details of the nominees.
The bill also provides ‘expressly’ that the expenses of the selection panel be a charge to the Parliamentary Service Commission.
Parliament currently provides secretariat services to the IEBC selection panel but there is no express law guiding the same.