The High Court has cleared the way for Parliament to forward the names of persons nominated to the electoral body’s selection panel to President William Ruto for appointment.
This was after Justice Dorah Chepkwony dismissed a petition filed last year, challenging the list over claims that persons with disabilities had not been considered for the Independent Electoral and Boundaries Commission (IEBC) selection panel.
Mr Boniface Njogu had submitted that the appointments were not in line with Articles 10 and 54(2) of the constitution, which require the State to ensure the progressive implementation of the principle that at least five percent of members of the public in elective and appointive bodies, are persons with disabilities.
But Justice Chepkwony dismissed the petition stating that the petitioner had failed to prove that there were constitutional and statutory violations, in the appointments.
“The petitioner has advanced insufficient evidence to warrant the recruitment process be deemed to have violated the constitution,” said the judge.
Appointing of the IEBC commissioners has been a complex and contentious one, marked by intense political divisions and numerous legal challenges.
Another case filed by Dr Augustus Kyalo Muli is pending hearing at the Court of Appeal, although no orders have been issued, stopping the formal appointment of the selection panel.
Dr Augustus Muli of the National Liberal Party moved to the appellate court late last year after High Court judge Janet Mulwa ruled that he was not eligible for appointment as his party was not a parliamentary party as it had no representation in the House.
Justice Mulwa further directed for fresh election for minority coalition cluster for nominees to the IEBC selection panel, which she said should be held in strict compliance with provisions of Sections 2(B) and 2(C) of the First Schedule of IEBC (Amendment) Act 2024.
Under the Political Parties Liaison Committee (PPLC), the majority coalition, the minority coalition and the non-parliamentary parties were to select one candidate each.
Mr Evans Misati was chosen to represent the non-parliamentary parties, while Mr Nicodemus Bore was chosen to represent the majority party.
For the minority coalition, Dr Augustus Muli was elected, defeating Wiper's Dr Koki Muli in an election presided over by the IEBC.
Dr Augustus Muli’s election was challenged and the Political Parties’ Disputes tribunal sided with him, only for the High Court to overturn the decision.
“Had the Azimio Coalition been keen to observe and comply with requirements as communicated to it by the Political Parties Registrar and the PPLC vide letters sent to it, it would have made a finding that Dr Augustus Muli’s party, National Liberal Party, was not a parliamentary party as it had no representation in parliament, and by that alone, ought not to have cleared Dr Augustus Muli to contest for the prestigious position,” said the judge.
Terming him a stranger, Justice Mulwa said the contravention of law aspect alone disqualified him from being cleared by the Azimio Coalition to contest in the election but instead, the coalition cheered him on and surprisingly, he garnered majority votes, beating Dr Koki Muli.
Dr Nelson Makanda and Fatuma Saman, who were on the previous selection panel, were retained by the Inter-Religious Council, while Andrew Kipkoech Tanui was selected by the Institute of Certified Public Accountants of Kenya.
The Law Society of Kenya (LSK) has one slot and the Parliamentary Service Commission (PSC) has two. Their nominees are Ms Caroline Kituku, Prof Adams Oloo and Ms Linda Koome.
Mr Njogu had submitted that persons living with disabilities were not represented in the list for the selection of IEBC Commissioners.
He argued that the process of selecting IEBC commissioners was so critical that it had stalled for more than a year, yet it was a sensitive subject. He also claimed that the list did not reflect regional balance as four of the nominees were from two ethnic communities.
“This court finds that based on the material presented before it, the petitioner’s arguments remain and stand largely unsubstantiated, thus, it cannot invalidate the minority coalition party’s nomination solely on speculation,” said the judge.
Justice Chepkwony said although there was a requirement that the appointing authority to progressively seek and recruit persons with disabilities, Mr Njogu had not shown that persons living with disabilities had applied to join the list but were locked out.
“It is imperative that the court considers what each separate provisions and its applicability. It is now settled that representation is not an absolute one but there should be efforts to show progressiveness,” the judge said.
The previous selection panel comprised of seven members but the list was expanded to nine following after the adoption of the National Dialogue Committee report.
