Justice Isaac Lenaola raises eyebrows on Judiciary e-filing system, IEBC

A Supreme Court judge has raised questions on the Judiciary’s online system during the impeachment proceedings of former Deputy President Rigathi Gachagua.

Justice Isaac Lenaola also waded into the controversy surrounding the reconstitution of the Independent Electoral and Boundaries Commission (IEBC) accusing the Executive and the Parliament of prioritising political legislation as opposed to laws that affected citizens directly.

“Those of you who followed the Rigathi Gachagua saga will remember that at some point the Judiciary’s online filing system went down. Why did that online platform collapse?

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 “For applications under Certificate of Urgency and time-bound pleadings, forward the same through the respective court stations’ email addresses and copy to [email protected] for processing,” the Judiciary advised.

Three petitioners Miruru Waweru, Andrew Njoroge and Mutonga Kamau filed a petition E568 of 2024 claiming that the disruptions to the e-filing payment system aimed to obstruct their petition.

“It is our view that the systems were malfunctioning in a deliberate attempt to block our petition and application from being placed before a judge timeously until the National Assembly completed the approval of the President’s deputy president nominee with intent to defeat grant of stay orders sought,” the petitioners stated. 

Justice Lenaola said technology will be a key factor in the 2027 General Election. ‘’We must learn from the past elections to understand where we are headed,” he said while recounting the coordinated attacks against the judges that they witnessed after the 2022 polls where he said hashtags were created aimed to the Judges

At the same time the judge, in his blamed the government and the Parliament for its failure on the IEBC reconstitution.

 “I do not understand why, for example, we are busy passing legislation very quickly on other subjects that are politically important, but we do not look at what is extremely important for this country - the electoral commission.

How can a country like ours stand on its feet if it does not have an electoral commission?” he posed while calling on Kenyans to use social media legislation and influence the appointment of IEBC.

He however acknowledged that the reconstitution of IEBC was put in limbo because the Azimio could not appoint their representative saying, ‘’Why is the IEBC not being constituted? Because Azimio can’t appoint their representatives to the panel? Is that something to hold the country hostage for two years?”

The dispute in Azimio was as a result of the dispute between Wiper Party and National Liberal Party (NLP) after the two parties nominated Koki Muli and Augustus Muli respectively in a disagreement that proceeded to courts thus halting the IEBC reconstitution.

Under the new model of picking the IEBC selection panel negotiated through the National Dialogue Committee (Nadco) the nominees for the selection panel were supposed to be picked by bodies such as the Inter-Religious Council of Kenya, the Law Society of Kenya, the Parliamentary Service Commission, the Public Service Commission, and the Political Parties Liaison Committee

The delay of the IEBC reconstitution has stopped various elections such as in Banisa and Ugunja constituencies and several Wards in the country whose representatives have either died, picked to be Cabinet Secretaries or whose victories have been overturned by the courts.

 The electoral body has remained without commissioners for two years following the exit of former chairman Wafula Chebukati and commissioners Molu Boya and Abdi Guliye, whose tenures ended in January 2023.

 The commission lost four commissioners who resigned at the height of the 2022 presidential vote controversy.

They included Juliana Cherera, Irene Masit, Francis Wanderi and Justus Nyang’aya gave up their posts after dissenting from Chebukati over the outcome of the presidential election.

 Lenaola’s IEBC remarks attracted reactions from various politicians and government officials including President William Ruto’s senior advisor Moses Kuria and Senate Majority Leader Aaron Cheruiyot who took to social media to react to the Judge’s remarks.

“Parliament is the easiest scapegoat for all our societal ills. I am surprised my friend Justice Lenaola would want to blame us on the IEBC standoff. As Bunge, we passed the necessary legislation close to a year ago. It is the Judiciary that has stalled progress with incessant court orders at every turn. I could understand Ole Sapit not knowing this but not a member of the bench surely,” Cheruiyot wrote.

On his part Kuria said “Even without the Wiper representative at the IEBC Selection Panel, I agree with Justice Lenaola. The Panel is quorate. I urge the other members to meet on Monday and kick off the process of advertising for IEBC Commissioners latest by Friday 13 December. We are living dangerously without an electoral body.”

Justice Lenaola proposed for the electoral reforms and the accountability of oversight bodies such as the National Cohesion and Integration Commission, and IEBC to ensure electoral integrity in 2027.