IEBC vetting: Order could trigger crisis

Kenyans are staring at an election crisis following the protracted recruitment of IEBC chiefs — a process that has now taken a new twist after a court slammed brakes on the vetting of commission nominees by Parliament.

The new legal battle has far-reaching implications as the courts could quash the entire recruitment exercise and order fresh hiring of the election bosses.

In court papers, the two petitioners, Boniface Mwangi and Kelvin Omondi, have trashed the recruitment as opaque, marred by irregularities and violation of the constitution. They want it nullified.

The case of the petitioners mirrors the protests of opposition leaders, including Wiper’s Kalonzo Musyoka, who have separately raised questions about the process and the suitability of certain commission nominees.

The Kalonzo team has accused President William Ruto of seeking to hire friendly commissioners to favour his 2027 re-election bid.

Election experts argue the Independent Electoral and Boundaries Commission is already in crisis, and any delay in appointment of commissioners will sink the agency deeper into turmoil.

 “We are already in a crisis because there are many things which need to be done [by the IEBC], and they are very clear indicators of what a crisis is,” Elections Observation Group national coordinator Mule Musau told the Star.

 “We have not done a boundaries review. There are pending by-elections. This already defines a crisis.”

There are also concerns that a new team of commissioners may take charge when it’s already too close to the polls.

As such, the commission may not be familiar with IEBC operations and could be at the mercy of the secretariat.

Justice Lawrence Mugambi on Monday issued conservatory orders blocking the National Assembly from vetting and approving the nominees, including chairman Erastus Edung,  pending the determination of the petition.

Other nominees named by President William Ruto are Anne Nderitu, Moses Mukhwana, Mary Sorobit, Hassan Noor, Francis Odhiambo, and Fahima Abdalla.

Justice Mugambi is expected to give directions on the way forward on May 29. His decision to freeze the vetting process has sent shockwaves through the political establishment, with the possibility of further extensions looming large.

The National Assembly’s Justice and Legal Affairs Committee (JLAC) was to conduct the vetting on May 27 and had asked Kenyans for their views on the nominees.

Parliament had set May 26 as the deadline for receiving memoranda and dossiers about the picks.

The earliest the commission was envisioned to be in place, as per IEBC estimates, was the end of June. But after the court ruling, the timelines remain uncertain, with poll experts warning that the commission would be heading into yet another election unprepared. The next general elections are about 26 months away.

JLAC chairman Gitonga Murugara said he needed time to read the court ruling, but any delays were a worry.

In a statement, Homa Bay Town MP Peter Kaluma, a member of JLAC, said the court orders could cause friction between the different arms of government.

“The orders issued suspending the vetting of IEBC commissioners run contrary to the public interest in a properly constituted electoral commission to undertake the pending by-elections and adequately prepare for the 2027 general elections,” the MP said.

He said the decision also puts the Judiciary and Parliament at loggerheads, adding that the courts have no jurisdiction to stop Parliament. "You can imagine what would happen were Parliament to ignore the orders in the public interest!"

The IEBC's preparedness has been a core concern in the country’s elections, especially since the chaos that followed the 2007 polls.

A commission of inquiry chaired by former South African judge Johann Kriegler recommended that it was best for the IEBC be in place three years before the elections.

The country is already in uncharted waters following the delayed reconstitution of the electoral commission since the retirement of chairman Wafula Chebukati and commissioners Boya Molu and Abdi Guliye in January 2023.

Three other commissioners resigned in December 2022, while another was removed by a tribunal, after which she challenged the ruling and quit.

The IEBC has thus for years been unable to conduct by-elections, delimit boundaries, and execute major procurement. The secretariat, in its 2024 report, indicated that voter registration was equally affected.

The poll agency has already admitted it may not conduct the review of boundaries, which must be concluded 12 months before the general elections.

IEBC CEO Marjan Hussein said the time, now squeezed further, was too short for the new team to deliver key constitutional mandates like boundaries review.

“It will be very difficult for the commission to work with these timelines,” Marjan said in an earlier interview.

On assuming office, the commissioners will find their in-tray full, with seven parliamentary by-elections to conduct and nine others at the ward level.

The constituencies are Banisa, which fell vacant after the death of MP Kullow Hassan; Magarini, following the nullification of Harrison Kombe’s election; and Ugunja, to replace Opiyo Wandayi, who was appointed to the Cabinet last August.

The Malava constituency seat fell vacant following the death of MP Malulu Injendi. The murder of Kasipul MP Ong’ondo Were has also necessitated a by-election in the constituency. The late Baringo Senator William Cheptumo is yet to be replaced. The Mbeere North seat is also vacant after Geoffrey Ruku was named Public Service Cabinet Secretary.

The wards where by-elections need to be conducted include Angata Nanyokie, Chewani, Fafi, Kisa East, Lake Zone, Mumbuni, Narok Town, Nyamaiya, and Nyansiongo.

The new commission will also need to conduct voter registration and implement institutional reforms.

But the biggest challenge the commissioners will have to deal with is preparation for elections, which has been blamed for shambolic contested polls.

Elog's Musau raised concerns that while court processes are provided for, they can be abused and cause unnecessary delays.

“The bigger, broader story is that we are at a time when we are handicapped in terms of the processes to be attended to, and we are coming closer to the elections,” the expert said.

Musau appealed for urgency, saying, “If we have genuine issues, let them be addressed, but our prayer is that the Judiciary expedites these cases as quickly as possible so as not to delay us unduly.”

He also urged Kenyans to consider alternative avenues for raising complaints and petitions. “We hold the commission to account at the end of the day,” he said.

As the legal battles drag on and political tensions rise, the country is inching closer to an election crisis with no clear resolution in sight.

Pundits hold that delays in reconstituting the commission, the backlog of electoral duties, and the looming constitutional deadlines all point to a perfect storm that could undermine the credibility of the 2027 polls.