Wandayi elevation to Cabinet pushes by-elections to 11

The recent appointment of Opiyo Wandayi to the Cabinet has pushed the number of electoral areas in need of by-elections for National Assembly and county assembly seats to 11.

After dismissing his entire Cabinet except  Prime Cabinet Secretary Musalia Mudavadi following sustained Gen Z-led anti-government protests, President William Ruto named former Ugunja Member of Parliament Wandayi as Cabinet Secretary of Energy and Petroleum, while former nominated MP Mbadi is the new National Treasury CS.

The new broad-based Cabinet was sworn in on August 8. It is a requirement that MPs nominated for ministerial appointments must resign from their political seats in line with Article 152 (3) of the Constitution. The Article states that a Cabinet Secretary shall not be a Member of Parliament.

Two other parliamentary seats that fell vacant are; Banissa Constituency where the MP, Hassan Kullow, was killed in a road accident on March 29, 2023 while the Supreme Court upheld the nullification of the election of Magarini MP Harrison Kombe on May 31, 2024.

Equally, there are seven pending by-elections in the counties following the deaths of the area Members of County Assemblies (MCAs).

However, residents in the affected areas will have to wait longer before getting new leaders because the Independent Electoral and Boundaries Commission (IEBC) is not fully constituted as required by law to hold by-elections. The law states that the commission should consist of members and a secretariat headed by the secretary.

Presently, the commission is being run by the secretariat after the six-year non-renewable term of the immediate former IEBC chairman Wafula Chebukati and two commissioners — Boya Molu and Abdi Guliye — ended in January 2023.  

While the Constitution states that whenever a vacancy occurs in an electoral area a by-election shall be held within 90 days from the date the vacancy is declared, this cannot happen because there is no electoral body in place to undertake the exercise.

To make matters worse, the Political Parties Dispute Tribunal recently issued orders stopping the formation of a nine-member IEBC selection panel to recruit new commissioners following an amendment to the law.

Senate Clerk Jeremiah Nyegenye has since challenged the matter in the High Court. Mr Nyegenye, who is also the secretary to the Parliamentary Service Commission (PSC), said that the IEBC (Amendment) Act of 2024 has strict timelines for the undertaking of activities of the selection panel and the time started running immediately after the law came into operation.

“The orders prohibiting the submission of names of the nominees shall affect the strict statutory timelines,” warned Mr Nyegenye, added that the lack of IEBC commissioners portends a situation that may lead to a constitutional crisis.

The amended law states that the IEBC selection panel comprise of individuals nominated by the PSC, the Law Society of Kenya, the Institute of Certified Public Accountants of Kenya, the Inter-Religious Council of Kenya and the Political Parties Liaison Committee.

The panel is required to conclude its work in 90 days following the signing into law of the IEBC (Amendment) Bill 2024. President Ruto signed the Bill into law on July 9, 2024.

Article 101 (4) of the Constitution states that whenever a vacancy occurs in the office of an elected MP, the respective Speaker shall, within 21 days after the occurrence of the vacancy, give notice in writing of the vacancy to the IEBC. This paves the way for a by-election to be held within 90 days. However, such a vacancy shall not be filled within the three months immediately before a General Election.

The filling of positions exited by nominated MPs is guided by Article 101 (2) of the Constitution.

The Article states that whenever a vacancy occurs in the office of a nominated MP, the respective Speaker shall, within 21 days of the occurrence of the vacancy give notice in writing of the vacancy to the IEBC.

The notice shall also be given to the political party on whose party list the member was nominated, which shall be filled within 21 days of the notification by the respective Speaker.

However, since the vacancies occurred, the Speaker of the National Assembly is yet to issue the writs formally declaring the seats vacant as there is no electoral commission to communicate to.

Early this year, High Court Judge Mugure Thande ordered the immediate reconstitution of the IEBC to undertake a by-election in Banissa Constituency.

“While a political settlement on the reconstitution of IEBC would be ideal, the prolonged period in which the recruitment process has been pending has led to violation of the rights of the people of Banissa to be represented in the National Assembly,” he said in his judgment.  

Attempts to reconstitute the commission have been fraught with headwinds.

In 2023, the Kenya Kwanza administration commandeered an amendment of the IEBC Act that reorganised the selection panel to recruit commissioners.

The panel was established and even started working, but protests by the opposition led by ODM leader Raila Odinga, which challenged the composition of the panel, led to the establishment of the National Dialogue Committee (Nadco).

Nadco, in a report approved by Parliament, recommended the changes that became IEBC (Amendment) Act 2024 that established a nine-member IEBC selection panel.

No sooner had the panel been formed than the Political Parties Dispute Tribunal issued the orders stopping its formation.

The absence of the commissioners means that the IEBC secretariat cannot do anything as the decisions of the commission are done at the plenary with the requisite quorum.

Section 10 (7) (e) (i) of the IEBC Act establishes the position of the secretary to the commission. It states that the secretary, who is chief executive officer, head of secretariat, accounting officer of the commission and the custodian of all commission’s records, shall be responsible for executing decisions of the commission.

“Unless a unanimous decision is reached, a decision on any matter before the commission shall be by a majority of the members present and voting,” states part 7 of the second schedule of the IEBC Act.

The quorum for the conduct of business at the plenary of the commission shall be at least half of the existing members of the commission and not less than three members.

Apart from undertaking elections and referenda, the commission has the task of conducting boundary delimitation that ought to have been undertaken by February 7, 2024.

Article 89 (2) of the Constitution states that IEBC shall review the names and boundaries of constituencies at the intervals of not less than eight year and not more than 12 years.

The Constitution further states that any review shall be completed at least 12 months before a General Election. The last review was undertaken in 2012 leading to the creation of 290 constituencies from the previous 210.

This means that the IEBC ought to have completed the exercise either by July 2021, which was 12 months to the August 9, 2022 General Election or by February 7, 2024.

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