From left: British Deputy High Commissioner to Kenya Dr Ed Barnett, IEBC Chief Executive Officer Marjan Hussein, Wiper Party Leader Kalonzo Musyoka, Deputy Chief of Staff for Performance and Delivery Management Eliud Owalo and David Gosney - Mission Director, Usaid Kenya Mission during the regional conference on the use of Artificial Intelligence (AI), Digital and Social Media in Elections in Kenya, at Villa Rosa Kempinski, Nairobi on December 3, 2024.
The country is sitting on a time bomb after missing out on key electoral timelines because it is unable to make crucial policy decisions necessary for the 2027 electoral cycle as a result of a dysfunctional polls body.
With less than three years to the next general elections, the Independent Electoral and Boundaries Commission (IEBC) remains without commissioners and thus cannot put in motion major electoral processes, some of which are required to be done years to the exercise.
Young Kenyans getting their national identification cards for the first time, have since become the major casualties as IEBC cannot carry out continuous voter registration. This scenario has the potential of locking out thousands of eligible voters from participating in the next polls.
Procurement of systems and materials necessary for electoral preparedness has also stalled, threatening the credibility of the 2027 contest.
IEBC chief executive Hussein Marjan on Tuesday opened up about the constitutional crisis facing the electoral body and its potential implication to the next elections.
Mr Marjan said, in the absence of commissioners, the body cannot supervise or conduct elections, carry out delimitation of constituencies and wards, and cannot conduct continuous registration of citizens as voters. It also cannot conduct regular revision of the voters’ roll, voter education among other critical electoral activities.
“Those (functions) articulated in Article 88 of the Constitution. All those require policy and strategic directions as well as approvals. Policy/strategy formulation and secretariat oversight is the role of the commission,” said Mr Marjan.
Voters in Banisa, Magarini, and Ugunja constituencies are without representation in the National Assembly as a result of the standoff in the recruitment of IEBC commissioners. Other electoral areas affected are Kisa East Ward in Kakamega, Chewani Ward in Tana River and Nyamaiya Ward in Nyamira.
The Constitution’s 12-year deadline for review of boundaries, which would have possibly changed the number of electoral units, also expired in March.
The last review took place in March 2012. Article 89 (2) of the Constitution gives the IEBC a maximum of 12 years after the promulgation of the supreme law of the land to review the boundaries.
“The IEBC shall review the names and boundaries of constituencies at intervals of not less than eight years and not more than twelve years, but any review shall be completed at least twelve months before a General Election of Members of Parliament,” it stipulates.
The IEBC is currently being run by the secretariat after the term of the commissioners, led by chairman Wafula Chebukati and commissioners Boya Molu and Abdi Guliye, expired on January 17, 2023.
2022 presidential election
The other commissioners, commonly referred to as the Cherera 4, led by vice-chairperson Juliana Cherera, commissioners Irene Masit, Justus Nyang’aya and Francis Wanderi, resigned or were forced out immediately after the 2022 presidential election.
It is almost a year since the committee that was co-chaired by Wiper leader Kalonzo Musyoka and National Assembly Majority Leader Kimani Ichung’wah delivered a report that had a raft of proposals, including reconstitution of the IEBC. But the process has stalled following a court case challenging the membership of the Selection Panel.
At the heart of the standoff is Mr Musyoka, who wants Amb Koki Muli in the panel. Amb Muli had lost to Dr Augustus Muli of the National Liberal Party (NLP) in an election to pick three members under the Political Parties Liaison Committee (PPLC).
Ex-IEBC commissioner Thomas Letangula described the standoff in having a commission in place as a time bomb that has a potential of disrupting the commission’s major timelines. He said preparations for elections are continuous, saying that some of the activities should be done way before the election year.
He said without commissioners, the polls body cannot finance its activities as it requires the commissioners to approve budgets.
“Key drivers of the agency are the chairperson and the commissioners. In the absence of the commission, IEBC is completely crippled. Even in terms of budget, the secretariat can only prepare a budget, but it has to be approved by the commissioners,” said Mr Letangule.
“Review of the boundaries is already overtaken by events. That is a critical function. The validity of the boundaries will definitely be a serious question in the 2027 elections,” he said.
Other activities that he said will be adversely affected include budgets and procurements. He also said that in the absence of a commission, IEBC was likely to miss out on grants that form a big chunk of their budget. This, he said, will affect preparedness.
“The success of an election is based on these continuous processes and preparations. Without the commissioners, we are sitting on a time bomb. It is reckless of the leadership from the presidency to the courts to have the country in this situation. They have to make an urgent decision,” said Mr Letangule.
Mr Kalonzo, while speaking during a conference on the use of AI, digital and social media in elections in Nairobi yesterday, raised concerns about the crisis.
“We are holding this very important conference with a malformed IEBC. I urge those who are standing in the way of reconstituting IEBC to see the bigger picture. They should set aside their narrow selfish interests for the greater good of the nation,” he said.
Electoral justice
He further lamented on the delays by the government to implement the recommendations of the NADCO that listed the reconstitution of the IEBC as one of its key pillars.
“The matters relating to electoral justice have not been implemented, including the evaluation of the 2022 elections. The constitutional and legal reforms to ensure credible elections are still pending,” he said.
Mr Kalonzo cited the constitutional timelines for boundary delimitation and the reconstitution of the IEBC. “The regime is already breaching the Constitution by failing to meet constitutional deadlines for boundary delimitation. We are already facing a constitutional crisis,” he said.
He went on: “We have a simple question for the Judiciary: Did the Constitution envisage a situation where commissioners of the IEBC are not in office? Did the framers of the Constitution contemplate a situation where the courts can allow for a dysfunctional commission?”
In an advisory to the IEBC on boundary review, the Kenya National Commission on Human Rights said the delay will “inevitably lead to a constitutional crisis”.
“KNCHR observes that the timelines given in the Constitution for the review will lapse in March 2024, yet the country does not have a fully constituted IEBC… the delay in the appointment of commissioners continues to stall the boundary review and delimitation process and will inevitably lead to a constitutional crisis,” part of the advisory said.
Mr David Gosney, the chargé d'affaires at the US Embassy, said there is need for the Kenyan government to win the trust of its people and utilise technology to tackle challenges in the election sector.
“Another fundamental pillar in the use of technology is the strengthening of institutions. In this case, the IEBC which manages elections. There is a need to bring in the commissioners now because the preparations begin very early,” he said.
Deputy Chief of Staff in the Executive Office of the President responsible for Performance and Delivery Management in Government, Mr Eliud Owalo, who delivered the keynote address on behalf of Prime Cabinet Secretary Musalia Muvadadi, steered clear of the topic.
Instead, he spoke about the crucial role of technology in the electoral process. “Increasingly, we find ourselves at the intersection of technology and democracy, particularly in electoral processes globally. AI’s involvement in elections has both positive and negative implications. It is important to harness the benefits of AI while mitigating the risks,” said Mr Owalo.
