•The Court departed from an earlier decision of a single judge of the High Court.
• The court had held that the quorum of five Commissioners as provided for in the Second Schedule of the IEBC Act is only applicable to making of policy decisions.
A remarkable finding of the Court was that the IEBC, the main electoral agency, is not properly constituted to verify signatures or conduct a referendum for want of quorum. The Court based this finding on article The IEBC is currently not fully constituted as it has three commissioners following the resignation of other Commissioners. The petition had been opposed by the respondents who argued that verification of signatures and conduct of referendum were not policy issues as to require the full constitution of the IEBC. It was further argued that the IEBC as an independent constitutional commission met the minimum threshold of three members in accordance with article 250(1) of the Constitution and could therefore conduct its business. The relevant constitutional provision provides that independent constitutional commissions, of which the IEBC is part, shall be made up of at least three and not more than nine commissioners. However, section 5(1) of the IEBC Act, which is the enabling statute, provides that the IEBC shall be comprised of a chairperson and six other commissioners, making a total of seven commissioners. The IEBC Act further provides that the quorum for the IEBC shall be at least five members-and it is upon this statutory provision that the Petitioners predicated their claim.
The Court departed from an earlier decision of a single judge of the High Court that had held that the quorum of five Commissioners as provided for in the Second Schedule of the IEBC Act is only applicable to making of policy decisions, holding that the statute provided no such qualification. The Court further added that verification of signatures and determination of the constitutionality of the BBI Bill were threshold and policy questions that could not be determined by a committee of the IEBC. The Court emphasized that while the Constitution provides for a minimum of three Commissioners for independent constitutional commissions, Parliament in its wisdom provided for seven commissioners and a quorum of five, well cognizant of the critical mandate of the IEBC and that this ought to be given effect. Consequently, the court held that the IEBC was not possessed of the requisite quorum at the time it made the consequential decisions relating to the BBI Bill thereby declaring all the related decisions made by the IEBC as null and void.
The above finding is momentous as it means that so long as the judicial decision stands, the verification of signatures that was conducted and the consequent transmission of the Bill to county assemblies for ratification are all irregular and would have to be redone by a quorate IEBC. Arguably, this finding can be queried especially given the constitutional provision that allows for a minimum of three commissioners, especially given that the Constitution ranks highest in the hierarchy of laws. As the supreme law, an argument may well be made that in the event of any conflict between the Constitution and a statute, the latter must always give way to the former. While this is so, it would however have to confront the equally attractive proposition that the IEBC Act as a statute is the enabling legislation contemplated by the Constitution and is a more specific provision relative to the general Constitutional provision and that it more closely expresses the wishes of the people as enacted by their elected representatives.
Muriungi is an advocate of the High Court of Kenya and teaches Law at the University of Nairobi