Judicial orders make IEBC toothless bulldog

IEBC Chairperson Erastus Ethekon addresses the Press on the Ol Kalou by-election in Nairobi, July 14, 2026. [Jonah Onyango, Standard

The Independent Electoral and Boundaries Commission's (IEBC) decision to sanction two politicians over alleged electoral offences during the Ol Kalou parliamentary by-election has opened a fresh legal and political debate, raising questions about whether the electoral agency can effectively enforce campaign laws as Kenya heads towards the 2027 General Election.

The commission fined Nakuru Town East MP David Gikaria Sh2.5 million for alleged voter bribery and Nyandarua Woman Representative Wanjiku Muhia Sh1.5 million for allegedly making inflammatory remarks during campaigns leading to the mini-poll.

However, the two legislators have since moved to court seeking to challenge the sanctions, setting the stage for a legal battle that could define the extent of the IEBC's powers to discipline candidates and political leaders accused of breaching electoral laws.

Their court challenge has triggered criticism from sections of the opposition, who argue that the commission selectively enforced the law while allegedly ignoring similar offences committed by politicians aligned to the government.

Communication specialist Dr Hesbon Owilla, however, said the court challenge should not be interpreted as evidence that the Judiciary is frustrating the IEBC, arguing that judicial review is itself part of the constitutional framework governing independent commissions.

"To say that the courts are interfering with the IEBC simply because they are reviewing its decisions is a misapplication of the independence of constitutional institutions. The IEBC has rules and regulations governing elections and anyone who breaches them can be sanctioned. Equally, those sanctioned have a constitutional right to challenge those decisions in court," he said.

According to Dr Owilla, the courts exist to ensure constitutional commissions exercise their powers lawfully and fairly, and their intervention should not be viewed as an attempt to undermine the commission.

"The courts are there to provide a just system for settling disputes. Whatever they decide will not necessarily mean they are interfering with what the IEBC is doing. It simply means whatever the commission has done is being subjected to due process so that justice is not only done but is seen to be done," he says.

He believes the cases filed by the two MPs could ultimately strengthen the commission by defining the scope of its enforcement powers.

"It is actually good that they have gone to court rather than making noise in public. Whatever the courts decide will give us clarity on how effective the IEBC is in ensuring that the electoral process is fair and within the law. The judgments will become case law that can guide future electoral disputes," he says.

According to Owilla, the outcome will benefit the country's electoral system regardless of how the courts rule.

"If the courts uphold the fines, the IEBC will have a strong basis for acting against future electoral offences. If the courts dismiss them, then the commission will know it has to tighten its regulations and investigative processes. Either way, it is a win for democracy because we end up with greater clarity,’’ he said.

The communication specialist also says the commission's greatest responsibility is to demonstrate independence through its actions, especially following the controversy that surrounded the appointment of the current commissioners.

"The way the commission came into office raised questions, but now that they are there, they have a bigger responsibility to show Kenyans they are fair adjudicators of the electoral process. If doing the right thing also helps restore public confidence, then that is good for the country," he says.

For Dr Owilla, the solution is straightforward: "The IEBC does not need to balance politics and the law because it is not a political player. It is a referee. If it simply follows the Constitution and electoral laws, it will deliver elections that are free, fair, transparent, credible and verifiable. The moment it departs from the law, it creates problems for itself."

Advocate Clerkson Otieno also dismisses claims that the courts are interfering with the commission's constitutional mandate, saying the IEBC does not operate outside the law.

"To say the courts are interfering with the IEBC would not really be correct because the commission does not operate in a vacuum. It operates within the confines of the Constitution and the law, and every decision it makes must pass the constitutional test," he said.

According to the lawyer, the Judiciary only steps in when a party argues that the commission may not have acted in accordance with the law.

"If someone is dissatisfied with a decision by the IEBC, they have a constitutional right to challenge it in court. That should not be interpreted as interference. The role of the court is to determine whether the commission acted in accordance with the law," he noted.

Clarkson says concerns that politicians are increasingly rushing to court whenever disciplinary action is taken against them should not necessarily be viewed negatively.

"Every case must be determined on its own merit. Historically, court decisions have helped strengthen the electoral system. If you look at cases such as Maina Kiai, they clarified how elections should be conducted and reinforced electoral integrity," Otieno said.

He adds that court decisions have often strengthened the electoral process by clarifying grey areas in election law rather than weakening the commission.

"People have gone to court before to challenge aspects of elections, and many of those decisions have improved how elections are conducted. Going to court can actually strengthen both the IEBC and the administration of justice,’’ he said.

Media scholar Prof Charles Nyambuga, however, says the commission's actions must also be judged against the principle of fairness and consistency.

"I would say the cooking is still in the kitchen. Investigations should culminate in substantive evidence before conclusions are reached," he said.

According to Prof Nyambuga, while the commission deserves recognition for attempting to curb electoral malpractice, it must ensure investigations are comprehensive before disciplinary action is taken.

"If we are obedient to the Constitution and electoral laws, then the rules should apply equally. You cannot have one set of actors being punished while allegations involving others are ignored," he said.

He argues that allegations involving politicians allied to the government should receive the same attention as those involving opposition figures if the commission is to inspire public confidence.

"There must be impartiality. The law should be applied equally across all sides. Otherwise, the public will question the credibility of the commission," he said.

Nyambuga noted that the current controversy comes at a particularly sensitive time, given the questions that surrounded the appointment of the current commissioners.

"They are trying, but we are not yet seeing complete impartiality. If they want Kenyans to trust them, they must show fairness to all sides. The issue is impartiality. If they are trying to build confidence, then they must demonstrate through their actions that they are treating every political side equally," Nyambuga said.

He warns that if concerns over selective enforcement persist during by-elections, they could become even more pronounced during the 2027 General Election.

"I fear that if this becomes the pattern of handling electoral disputes, then the country could face even greater controversy during the General Election," he stated.

As campaigns gradually gather momentum ahead of the 2027 polls, the IEBC will be expected to regulate campaign conduct, enforce the Electoral Code of Conduct, oversee voter registration and administer one of Kenya's most consequential elections.

Whether the courts uphold or quash the sanctions sought by Gikaria and Muhia, the judgments are expected to become an important legal reference for future electoral disputes. More significantly, they will determine how confidently the IEBC can enforce electoral laws while remaining accountable to judicial scrutiny.

The Ol Kalou by-election has therefore become more than a contest over one parliamentary seat. It has emerged as an early test of the commission's authority, the willingness of politicians to challenge that authority through the courts and, ultimately, whether the IEBC can convince Kenyans that it is ready to deliver a free, fair and credible General Election in 2027.