The Independent Electoral and Boundaries Commission could be fully constituted within the next three months, following the swearing in of the IEBC selection panel to recruit commissioners.
The lack of IEBC commissioners in the past two years pushed the country to a constitutional breach, as key functions such as conducting by-elections and review of constituency boundaries missed their legal deadlines.
The newly inaugurated, nine-member selection panel has two nominees by the Parliamentary Service Commission (PSC), one by the Law Society of Kenya (LSK), one by the Institute of Certified Public Accountants of Kenya (ICPAK), two by the Inter-Religious Council of Kenya (IRCK) while the Political Parties Liaison Committee (PPLC) has three.
The PPLC nominees include one each from a party other than a parliamentary party or coalition of parties, from the majority party or coalition of parties and from the minority party or coalition of parties.
“The selection panel shall finalise the recruitment within 90 days of its appointment and forward the names of the nominees to the President and shall thereafter stand dissolved,” reads the amended IEBC Act.
Parliament may, by a resolution passed in both the National Assembly and the Senate, extend the tenure of the selection panel for a specified period.
The law obligates the Parliamentary Service Commission (PSC) to provide secretariat services, facilitate the panel and meet its expenses as it goes about its mandate.
After the President formally appointed the selection panel, National Assembly Speaker Moses Wetang’ula , the chairman of the Parliamentary Service Commission, directed Secretary to the PSC Jeremiah Nyegenye, who is also the Clerk to Senate, to immediately facilitate the panel.
“Following the gazettement of the members of the IEBC selection panel by the President, I have communicated to the Secretary of PSC to put in place all the necessary arrangements required to facilitate the work of the panel as obligated by the law,” Mr Wetang’ula said.
The absence of IEBC commissioners has been a matter of public debate on social media, public rallies and private spaces.
On social media, trending hashtags have piled pressure on the government to expedite the reconstitution of the commission.
The opposition, led by Wiper leader Kalonzo Musyoka and Narc Kenya’s Martha Karua among others, have also been vocal on the need to have new commissioners.
On Monday, Mr Wetang’ula urged the panel to expedite its assignment.
“Noting that this is a matter of national importance, I urge the selection panel to expedite and conclude the recruitment process of the IEBC commissioners at the earliest opportunity in accordance with the law,” he said.
Since the six-year non-renewable term of immediate former IEBC chairman Wafula Chebukati and two commissioners — Boya Molu and Abdi Guliye — ended in January 2023, the commission has been run by the secretariat, whose legal mandate is limited.
Members of the IEBC selection panel in a group photo with Chief Justice Martha Koome.
Photo credit: Pool
The two commissioners’ end of tenure came after three other commissioners — then IEBC vice-chairperson Juliana Cherera, Justus Nyangaya and Francis Wanderi — opted to resign rather than face a tribunal that was controversially established to investigate their conduct immediately after the August 9, 2022 General Election.
Their colleague, Irene Masit, who opted to face the tribunal, was later ejected by President William Ruto following a recommendation by the tribunal.
Their exit left IEBC a shell, as critical functions of the agency could not be undertaken.
The secretariat, headed by CEO and Commission Secretary Marjan Hussein Marjan, was limited to conducting routine functions such as training of staff and procurement of non-strategic materials. The non-strategic materials are defined as those that have no direct impact on elections.
Critical electoral functions that cannot be undertaken without commissioners in office include the delimitation of electoral boundaries and conducting of by-elections.
Mr Marjan did not respond to our inquiries on the status of affairs at the electoral agency pending the highly anticipated appointment of new commissioners.
An MP who sits on the Justice and Legal Affairs Committee of the National Assembly, which oversees the IEBC, confided to the Nation that the lack of commissioners has made it difficult for the electoral agency to get funding from donors, denying the commission a critical revenue stream.
“We have seen correspondence from donors indicating that they cannot fund IEBC without commissioners unless with the express request from the Head of State. That’s how difficult things are at the commission considering that the funding it gets from the exchequer is not enough,” said the MP, adding that the secretariat’s critical functions are crippled.
A fully functional IEBC could also pave the way for the recall of non-performing legislators, a constitutional provision that Gen Z protesters were itching to exercise since the rejection of the Finance Bill, 2024.
Initiation of constitutional amendments via the popular initiative provision could also not happen without a properly constituted IEBC.
Additionally, review of electoral laws and regulations and updating of the voters register can only be undertaken by the commission sitting at the plenary.
The commission is also required to review its processes and make necessary changes required to make its operations more efficient, transparent and accountable.
Article 89 of the Constitution states that IEBC shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than 12 years, and 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, up from the 210 constituencies that existed before.
This means that IEBC ought to have completed the review either by July 2021, being 12 months to the August 9, 2022 General Election, or by February 7, 2024.
Senior Counsel (SC) Charles Kanjama noted that the Commission, once fully constituted, can proceed and undertake boundary delimitation this year.
“The commission can do the job this year within six months,” said Mr Kanjama.
But Mr Bob Mkangi, who was part of the team that drafted the current Constitution, noted that it will be prudent for the Commission to seek the guidance of the Attorney-General and the Supreme Court on the delimitation of electoral boundaries.
“Had the Commission under Chebukati started the delimitation? If this is the case, it can be argued that the process commenced within the requisite eight years period but completion was delayed,” said Mr Mkangi.
He noted that, once structurally sound, the Commission can try to complete the task before August 2026, for the changes to apply in 2027 even though he termed it “a tall order”.
They include directors for voter education and partnerships; research, electoral boundaries and risk management; procurement; and human resources and administration.
Other IEBC senior management staff are also set for retirement in the coming days. Mr Marjan, who until the 2022 General Election was the acting CEO, was confirmed before Mr Chebukati and his team left office.
The Commission is also required to undertake by-elections in three constituencies — Banissa, Magarini and Ugunja as well as the ODM nominative slot held by Mr John Mbadi before his elevation to the broad-based cabinet in August last year.
The Banissa constituency seat was left vacant after its former MP, Hassan Kullow, died in a road accident on March 29, 2023.
Magarini became vacant after the Supreme Court on May 31, 2024, upheld the High Court’s nullification of the election of Mr Harrison Kombe.
The Ugunja constituency seat became vacant following the appointment to Cabinet of then area MP Opiyo Wandayi on August 8, 2024.
The election of new MCAs is also pending in several wards following the death of the area representatives.
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.
However, this has not been possible because there are no commissioners to conduct elections.
Section 24 A (1) of the IEBC Act stipulates that the Commission shall , after every General Election, review its operations and make the necessary changes required to make its operations more efficient, effective, transparent and accountable.
The review shall be completed within 18 months after every General Election and the Commission shall publish the report in the Gazette and submit the report to Parliament.
In its recommendations on electoral reforms, the Kriegler Commission, led by South African judge Johann Kriegler, proposed far-reaching changes of our electoral processes and early composition of the electoral agency to prevent a repeat of the bloody 2007 post-election violence that claimed more than 1,000 lives and displaced hundreds of thousands of Kenyans.
