The fate of 26 by-elections conducted by the Independent Electoral and Boundaries Commission (IEBC) since 2018 hangs in the balance following a decision by the Appellate Court to affirm a declaration that the agency has no quorum to conduct its business.
Also in limbo are decisions made by the current three commissioners in preparation of the 2022 General Election, such as procurement of poll materials, hiring of staff and development of election regulations and timelines.
According to the appellate court, for the IEBC to be constitutional, it needs a composition of a minimum of three commissioners (Article 250 of the Constitution) but for it to conduct its business, it needs to have a minimum of five commissioners (IEBC Act schedule 5).
The interpretation has set the stage for a debate on whether the judgment can be applied retrospectively.
The court's finding potentially has implications on decisions made by the polls' commission, including the at least 26 by-elections (ten National Assembly and 14 wards) called and conducted by IEBC without the statutory quorum.
The National Assembly mini-polls include the one for Machakos and Migori senatorial seats as well as Juja, Kiambaa, Bonchari, Msambweni, Matungu, Kabuchai, Kibra and Baringo South MP seats.
The wards include Muguga (Kiambu county), Rurii (Nyandarua county), Hellsgate, London and Lake View wards in Nakuru County, Kiamokoma and Bobasi Chache ward (Kisii), Huruma (Uasin Gishu), Gaturi (Murang'a), Kitise Kithuki (Makueni), Kahawa Wendani (Kiambu), Ganda (Kilifi), Dabaso (Kilifi), Ruguru (Nyeri), North Kadem (Migori) and Kisumu North (Kisumu).
Another commissioner, Roselyn Akombe, had resigned earlier in October 2017 days to the repeat presidential election, saying the commission had become a competition of political interests. The exit of the four left only the chairperson Wafula Chebukati and two commissioners in office.
A seven-judge bench of the Court of Appeal on Friday upheld a finding of the High Court that the Second Schedule of the IEBC Act provides the quorum for the conduct of business at a meeting of the IEBC is at least five members.
The appellate judges also affirmed a finding that the statute (IEBC Act), which requires five commissioners to conduct any business, does not distinguish between "policy" and other business.
"Statute fixes the composition of IEBC to seven and a quorum of five which has not been challenged. A drastically reduced membership could lead to the public losing confidence in the ability and neutrality of the commission," said appeals Judge Francis Tuiyott in the judgment which was in relation to the proposed referendum under the Building Bridges Initiative (BBI).
Justice Patrick Kiage said: "The quorum by IEBC cannot be three and must be five. Instead of coming to court and saying it is doing just fine, it should have sent an SOS and sought immediate help from the appointing authority (President)".
The judgment means the commission is dysfunctional until the four commissioners recruited recently get Parliament's approval.
