Supreme Court: IEBC has trust deficit

Chief Justice Martha  Koome when she presided over the swearing-in of the IEBC commissioners at Supreme Court, Nairobi, on July 11, 2025. [Kanyiri Wahito, Standard]

The Supreme Court has raised concern about the eroded public trust in the Independent Electoral and Boundaries Commission (IEBC), attributing it to decades of politicisation of the electoral process.

The judges stated that this trust deficit had been exacerbated by relentless attacks on the Commission’s independence and a persistent failure to implement electoral reforms promptly and in good faith.

Chief Justice Martha Koome and Justices Philomena Mwilu, Njoki Ndung’u, Smokin Wanjala, Isaac Lenaola, and William Ouko, observed that there exists a deep-seated trust deficit between the Kenyan public and the IEBC.

“This deficit did not occur by accident, rather it is the product of decades of politicisation of the electoral process, relentless attacks on the Commission’s independence, and a failure to implement electoral reforms in good time and in good faith,” said Justice Koome.

The apex court emphasised that the legitimacy of Kenya’s democratic order depends not only on credible institutions but also on the fidelity of political actors to the spirit of the Constitution and the sovereignty of the people.

“The history of Kenya’s electoral process, from the findings of the Kriegler Commission after the 2007–2008 post-election crisis, to the litigation around elections culminating in the 2022 Presidential Petition, reveals a consistent theme—one of a deep-seated trust deficit between Kenyans, the IEBC, and the electoral process,” Justice Koome noted.

The judges urged political leaders to use their influence to address structural weaknesses, improve accountability, and restore public confidence in the IEBC’s impartiality and competence.

“Leaders exercising delegated authority on behalf of the People under the Constitution, rather than fuelling this mistrust for short-term political gain, undermining the very institutions they are duty-bound to protect, should channel their power and influence toward addressing structural weaknesses, enhancing accountability, and reinforcing public confidence in the impartiality and competence of the IEBC,” said Justice Koome.

The court made the remarks while delivering its advisory opinion in a case where the IEBC Secretariat and Chief Executive Officer Marjan Hussein, sought guidance on whether the Commission could undertake the delimitation of electoral boundaries and other electoral processes in the absence of Commissioners or the requisite quorum.

Hussein also sought clarification on whether the IEBC could proceed with a review of the names and boundaries of constituencies and wards when the timelines stipulated under Articles 89(2) and 89(3), as read with Section 26 of the County Governments Act, had already lapsed.

In addition, the CEO asked whether the said timelines could be extended, and if so, by whom and under what circumstances.

In its verdict, the Supreme Court ruled that the IEBC cannot legally act without a resolution by its Commissioners—including undertaking the delimitation of electoral boundaries.

“In the absence of Commissioners or the requisite quorum of Commissioners, IEBC is constitutionally incapacitated from undertaking or purporting to undertake the exercise of delimitation of electoral boundaries and other constitutionally mandated electoral processes,” the judges ruled.

The Court further ruled that only a duly constituted Commission—comprising the Chairperson and other Commissioners—can lawfully undertake the review of constituency and ward boundaries, even after the expiration of prescribed timelines.

The judges also held that the Secretariat or its members may only seek an advisory opinion with written authority from the Commission, supported by a formal resolution.

“Accordingly, it is our considered view that the IEBC’s Secretary and Chief Executive Officer, irrespective of whether or not IEBC’s Commissioners are in office, is constitutionally clothed with the competence to seek an advisory opinion from this Court under Article 163(6) of the Constitution,” said Justice Koome.

The Supreme Court further dismissed a preliminary objection raised by the Attorney-General, who had opposed the advisory opinion on grounds that the IEBC was not properly constituted at the time.

The Attorney-General acknowledged the legal challenges arising from the lapse of constitutional timelines and advised the court to allow Parliament to conclude the legislative process already underway.

The Attorney-General noted that the Constitution of Kenya (Amendment) Bill, 2024, which seeks to address the issue, had been passed by the National Assembly and was pending consideration by the Senate.

He also pointed out that Parliament had adopted the National Dialogue Committee (NADCO) report on 22 February 2024. Among the recommendations was an amendment to Article 89 of the Constitution to allow the extension of the boundary delimitation period through a resolution by the National Assembly.

The Attorney-General, however, cautioned that any such action could pre-empt and limit the discretion of incoming Commissioners.

Despite acknowledging that the IEBC could not afford to abandon its responsibilities due to lapsed timelines, the Attorney-General clarified that he could not advise on the outcome of the ongoing parliamentary process.

The Court, however, noted that the Chairperson and Commissioners of the IEBC were sworn into office on 11 July 2025, during the pendency of the advisory opinion matter.