The end of the six-year term of Independent Electoral and Boundaries Commission (IEBC) chairperson Wafula Chebukati and two other commissioners in nine days concludes a tumultuous chapter that saw four commissioners resign, and three of their replacements follow suit.
The terms of Mr Chebukati, and commissioners Abdi Guliye and Boya Molu come to an end on January 17, 2023, six years after a seven-member team was sworn into office. Vice chairperson Connie Nkatha Maina, and commissioners Roselyne Akombe, Paul Kurgat, and Margaret Mwachanya—who were all sworn in with the other three—quit after the 2017 General Election, all of them under a cloud of secrecy, and a fear of a commission split down the middle.
For the three, the by-elections this week in Kandara, Garissa Township, Elgeyo Marakwet and Lamu’s Shella ward might have been their last major assignment. “For the last five or six years, we have been improving our systems as a commission. Although I will be retiring in the next 10 or 12 days, I am confident that going forward, the IEBC will only get stronger and better.” Prof Guliye said in Iten, Elgeyo Marakwet, on Friday. “For the people of Kenya, I would like to assure you that the commission is impartial.”
Three of the four IEBC commissioners that replaced the four that exited—Juliana Cherera, Francis Wanderi, and Justus Nyang’aya— quit last month to avoid facing the Justice Aggrey Muchelule-led tribunal probing their conduct. Commissioner Irene Masit has chosen to face the tribunal.
The exit of Mr Chebukati, Mr Molu and Prof Guliye is likely to affect the boundary review process that should be concluded next year. The collection of views from the public is expected to start this year. Complicating the situation is the fact that Ms Masit is waiting for the tribunal’s verdict. This means the electoral agency will not be legally constituted by January 18.
According to the Supreme Court ruling on the Building Bridges Initiative (BBI), the IEBC is quorate when it has at least three commissioners.
But National Assembly Justice and Legal Affairs Committee (JLAC) chairperson George Gitonga Murugara told Sunday Nation that they intend to constitute the Selection Panel as soon as possible to salvage the situation.
“The process of recruiting new commissioners will start because we are constituting the selection panel very soon,” said Mr Murugara.
But Orange Democratic Movement (ODM) chairman John Mbadi questioned the hurry in passing the amendments to the IEBC Act currently before the Senate, saying there is already an existing law on how IEBC commissioners, and the country, should not be plunged into a crisis.
“Unless there is a motive behind this Bill, the President should use the law that is already in place for the process of recruiting new commissioners to start. What happens if the Senate rejects the Bill? Does it mean we will not have new commissioners?” he asked.
Mbadi and Vihiga senator Godfrey Osotsi want the forthcoming boundary reviews put on hold until a new commission is in place, saying the current one is politically partisan and cannot preside over such an important exercise. “The boundary reviews will definitely stall because we cannot trust this commission with such an important exercise that determines the nature of representation of the people,” Mr Mbadi said.
Article 89(2) of the Constitution requires the IEBC to undertake delimitation of boundaries between eight and 12 years, and the next phase, which should conclude by 2024, is to be guided by the 2019 census that placed the population at 47.5 million.
The Constitution demands that the population of a constituency be higher or lower than its quota by 40 per cent for cities and sparsely populated areas, and 30 per cent for other areas.
Additionally, the IEBC is required to consider geographical features and urban centres, community of interest, historical, economic and cultural ties; and means of communication.
While the commission has no power to reduce the constituencies from the set 290, it has the power to merge and propose new constituencies and has the latitude to change the number of wards from the current 1,450.
Both Mr Chebukati and CEO Marjan did not respond to our calls and text messages on the fate of the boundary review and whether the IEBC has received funds for the exercise.
But for Mr Chebukati, Prof Guliye and Mr Molu, theirs can be described as a bittersweet exit, with their actions having attracted praise and criticism in equal measure.
Mr Mbadi said the earlier Mr Chebukati left the commission the better for Kenya. “This is a person who presided over an election that was nullified by the Supreme Court, he presided over another one where the majority of commissioners did not agree with him, but, unfortunately, he is an angel to some people,” he said.
Mr Mbadi expressed fear that the country will be in a “bad state” if it goes even for a day without a functional commission. “Their exit definitely means the commission becomes dysfunctional as Ms Masit is suspended. This is not good for the country at all; it means we can’t have a by-election if something happens.”
Mr Osotsi said history will judge the commissioners harshly based on their conduct in the 2017 and 2022 elections. “I know they have accolades from some quarters, but there are many souls suffering because of 2017 and 2022. The future will judge them.”
Mr Osotsi pointed out that an imminent crisis can be avoided if Kenya Kwanza satisfactorily engages all stakeholders and stops their one-sided push for amendments to the electoral laws, like the current IEBC Act, which seeks to change the composition panel that will recruit new commissioners.
Mr Odinga recently called for the prosecution of Mr Chebukati, accusing him of bungling last year’s presidential election. “In my view, Mr Chebukati is a criminal who should be prosecuted and sentenced to jail. What he has committed is a great crime against humanity and against the people of this country. I strongly believe he, not the other four commissioners, should be in the dock,” he said.
But for President William Ruto
“That we can resist bribery, blackmail and intimidation and serve the public interest as public servants, I want to say Chebukati is the hero of this election,” he said recently.
Constitutional lawyer Bobby Mkangi describes the three exiting commissioners as brave for having not resigned in 2017 when their colleagues decided to walk away from the Anniversary Towers-based commission.
“They are brave because when the commission was at its lowest moment in 2017 following the death of Msando, nullification of the 2017 presidential election and resignations of some of the commissioners, it was suspected that they would resign. They have remained in office up to now,” he said.
Mr Mkangi says the exit of the three will compromise the institution for a long time until new ones are recruited. “As the Supreme Court ruled, the policy or think-tank decision-making body of the commission will remain compromised until it is constitutionally and legally constituted.
“Other policy decisions that have been activated by the outgoing commissioners will continue to be implemented by the secretariat led by the CEO. Things like voter registration will continue to be done daily,” he said.
For constitutional lawyer Charles Kanjama, from January 17, the IEBC will be crippled until it is properly constituted. “The Chebukati team was appointed in January 2017, hence there would be a full vacancy.”
International Centre for Policy and Conflict director Ndung’u Wainaina told Sunday Nation that the problem at the IEBC will persist as long as the recruitment of commissioners is compromised.
