It is commendable
that Kenya is on the verge of reconstituting a fully-fledged Independent
Electoral and Boundaries Commission (IEBC).
This comes
after President William Ruto forwarded the names of new commissioners to
Parliament for approval, following a rigorous interview process by the IEBC
Selection Panel in accordance with Article 250(2) of the Constitution of Kenya,
the Independent Electoral and Boundaries Commission Act (No. 9 of 2011), and
Section 6 of the IEBC (Amendment) Act, 2023.
This
development could not be timelier.
It offers
the country a critical opportunity to embark on early and earnest preparations
for the 2027 General Elections, now barely two and a half years away.
More
immediately, it empowers the Commission to fulfill its constitutional mandate
of conducting by-elections in constituencies and wards that are currently
unrepresented—a constitutional obligation that cannot be delayed further
without undermining the democratic rights of citizens.
Several
constituencies remain without Members of Parliament due to deaths, resignation
or nullifications of elections.
These
include Banisa, Magarini, Ugunja, Malava, and, most recently, Kasipul.
At the ward level, areas such as Chewani (Tana
River), Kisa East (Kakamega), Nyamaiya (Nyamira), and Kariobangi North are also
awaiting by-elections following the demise of their representatives. 4
Some of
these vacancies have persisted for more than a year.
The
prolonged failure to fill them not only disenfranchises constituents but also gravely offends Article 1(2) of the Constitution, which affirms that sovereign
power belongs to the people and shall be exercised either directly or through
their elected representatives.
Incomplete
electoral representation amounts to a suspension of that sovereign power and
undermines democratic governance at its very core.
The task
that awaits the newly constituted IEBC is daunting but unmistakable: it must
learn from its predecessors and ensure scrupulous adherence to both the letter
and the spirit of the law.
While it
must guarantee elections that are free and fair, the Commission must also
become an uncompromising defender of peaceful, lawful campaigns.
Kenya’s
electoral history is replete with tragic episodes of political violence,
intimidation, and thuggery.
In the 2017
elections, for instance, dozens of lives were lost during post-election
confrontations.
In
by-elections such as the one in Kabuchai in 2021, we witnessed brazen violence
and chaos orchestrated by rival camps.
The repeated
normalisation of such behaviour has opened pathways to leadership for
individuals who rely not on persuasion, policy, or public service, but on brute
force, fear, and manipulation.
This is a
perversion of democracy. It substitutes the people’s will with mob coercion and
institutionalises impunity.
Article
81(e) of the Constitution sets out the principles governing our electoral
system. Elections must be free from violence, intimidation, improper influence,
or corruption.
These are
not aspirational ideals—they are binding constitutional imperatives. The
Elections Offences Act, 2016 reinforces these principles with clear statutory
prohibitions:
Section 10
criminalises the use of violence during the electoral process.
Section 11
outlaws undue influence, including threats or coercion designed to manipulate
voter behaviour.
Section 13
prohibits bribery and treating, while criminalising attempts to improperly influence
the electoral outcome.
These
offences are punishable by fines, imprisonment, and disqualification from
running as a candidate in the elections and holding public office.
They are not
technicalities; they go to the heart of democratic legitimacy.
Regrettably,
enforcement has been sporadic and often politicised. This has weakened public
confidence and diminished the law’s deterrent power.
The IEBC,
working in concert with the Office of the Director of Public Prosecutions
(ODPP) and the National Police Service, must now treat such offences with the
gravity they warrant.
Disqualification
of candidates who breach electoral laws should not be viewed as a drastic or
controversial step—it is a constitutionally grounded mechanism for safeguarding
electoral integrity.
Article
99(2)(h) of the Constitution disqualifies from election any person found to
have abused public office or violated Chapter Six on Leadership and Integrity.
It is time
to interpret and apply this provision robustly.
Those who
engage in political violence, ethnic incitement, or vote buying are unfit for
leadership and should be barred from participating in elections.
Equally vital
is the reinvigoration of the National Cohesion and Integration Commission
(NCIC).
Entrusted with the mandate of preventing
ethnic hatred and promoting social cohesion, the Commission has largely
confined itself to symbolic gestures and press statements.
Section 13
of the National Cohesion and Integration Act criminalises hate speech and
incitement to ethnic hostility.
Nevertheless,
during every election cycle, we witness political actors engaging in
inflammatory rhetoric, reckless mobilisation along ethnic lines, and calculated
fearmongering.
The NCIC
must move beyond mere warnings.
It must
courageously forward cases for prosecution, collaborate closely with the ODPP,
and ensure that political actors who weaponise ethnicity are held to account.
To do otherwise
is to abandon its constitutional duty.
It bears
emphasis that democracy is not measured merely by the act of voting, but by the
environment in which that vote occurs.
If the electoral climate is contaminated by
threats, violence, bribery, or hate speech, the process ceases to be
democratic.
It becomes a
coercive performance in which the will of the people is manipulated rather than
expressed.
Any
leadership born of such a process lacks democratic legitimacy, regardless of
its numerical majority.
The culture
of electoral violence and intimidation also distorts the composition and
conduct of our representative institutions.
Parliament
ends up populated not by individuals of ideas, integrity, and vision, but by
those who gained office through intimidation and patronage.
These
individuals often replicate their tactics within the legislature—bullying
opponents, corrupting deliberative processes, and undermining dissent.
Over time,
this corrodes public trust and hollows out the very purpose of representative
democracy.
It is
therefore imperative for the IEBC to interpret its mandate expansively.
The
Commission is not merely an administrator of electoral logistics—it is a constitutional
guardian of democracy.
It must
wield its powers with courage and impartiality, and it must be ready to
disqualify candidates who flout electoral laws or compromise the peaceful
nature of elections.
But it
cannot act alone. Other constitutional bodies must rise to the moment. The NCIC
must rigorously police speech and promote unity.
The
judiciary must dispense electoral justice swiftly and fairly. The police must
enforce the law without bias or delay.
Together,
these institutions must create and defend an electoral environment that is
free, fair, and peaceful.
Only then
can the by-elections now pending—and the 2027 General Election that lies
ahead—genuinely reflect the will of the people, freely and conscientiously
expressed.
Anything
less would not only betray the Constitution but also imperil the future of our
democracy.
The ballot
must never again be overshadowed by the bullet, the bribe, or the bigotry. It
is time to protect the soul of our democracy with integrity and strict
adherence to the rule of law.
Fwamba NC Fwamba is the Chairman of
the National Alternative Leadership Forum and writes on governance and
constitutionalism.
