Reconstitute the IEBC now for it to deliver and be legally formed

IEBC branded microphone at Bomas of Kenya on August 13, 2022. [Jonah Onyango, Standard]

Six months ago, I wrote about the urgency to constitute the Independent Electoral and Boundaries Commission, to forestall a looming catastrophe of constitutional proportions.

I had assumed that we cared about safeguarding the Constitution and constitutionalism. I was wrong since the constitutional timelines are no longer meaningfully adhered to or are altogether ignored.

The IEBC has been without a chairperson and commissioners for more than a year thereby paralysing essential work that requires approvals, decisions, or interventions by the commission. These include delimitation of electoral boundaries.

The Constitution provides that electoral boundaries should be reviewed at an interval of between 8 to 12 years. The IEBC used the report of the Interim Independent Boundaries Review Commission (IIBRC) and Justice and Legal Affairs Committee (JLAC) to conduct the last delimitation and Parliament published the National Assembly Constituencies and County Assembly Wards Order on March 6th, 2012. 8 years lapsed in 2020 while 12 years lapsed on March 5, 2024.

This means the time within which IEBC would have completed the electoral boundaries delimitation under the Constitution has lapsed. The IEBC Boundaries Review Operations Plan of 2019-2024 had anticipated completion and gazettement of the delimitation process by March 2024 using the 2019 census that placed the population at 47.5 million.

The expiry of constitutional timelines poses a serious constitutional crisis that needs to be addressed urgently to ensure the government does not appear to be operating outside the Constitution thereby undermining the rule of law. The term of Chairman Wafula Chebukati and two commissioners, Abdi Yakub Guliye and Boya Molu expired more than one year ago, while Juliana Cherera (former vice chair) and Commissioners Francis Wandera, and Justus Nyang'aya resigned by the end of 2022 with Commissioner Irene Masit opting to submit herself to the President Ruto appointed tribunal led by Court of Appeal Judge Aggrey Muchelule to probe their conduct in the 2022 polls.

The IEBC has remained without members to provide oversight, strategic and policy direction, and make critical decisions to enable the Hussein Marjan Hussein-led secretariat to execute its mandate. The National Dialogue Committee (NADCO) report recommended the amendment of Article 89 of the Constitution to review electoral boundaries and address some of the residual issues on various electoral boundaries not resolved in 2012 and were supposed to be resolved with this review.

These issues included concern by leaders, especially from Mt Kenya region who complained of 'under-representation' demanding creation of new constituencies and wards in the region and the retention of 27 constituencies that had not met specific population quotas.

Amending Article 89 does not require a referendum though public participation and stakeholder engagements are required. The Constitution provides for 290 constituencies but these can be reduced through the merger of constituencies or be expanded to ensure fair and as much as possible equitable representation and to safeguard the principle of one-person-one-vote and equitable distribution of resources and opportunities.

The secretariat cannot operate without commission members. Therefore, the IEBC needs to be fully constituted before the delimitation of electoral boundaries can be done. The IEBC Selection Panel was established through Gazette Notice No. 2641 of 27th February 2023 under the IEBC Act with the responsibility of constituting the IEBC and took the oath of office on 2nd March 2023 at the Supreme Court, before Chief Justice Martha Karambu Koome.

It had already begun work and had declared and advertised the vacancies and received applications for the positions of the chairperson and commissioners of IEBC. However, the process was put on hold pending the bipartisan NADCO dialogue between the Kenya Kwanza government and the Azimio-One Kenya opposition coalition.

The report has been received by the leadership of respective parties and recommends a raft of actions including the expansion of the IEBC Selection Panel. Most of the recommendations by the NADCO report will require both constitutional and legislative review and amendments.

Although Parliament has proved to waste no time in legislating issues of their interests, there is no longer time left for the reconstitution of IEBC and delimitation of electoral boundaries. Whatever is delaying the legislative process must be removed and Parliament should move with speed and alacrity to restore constitutionalism and rule of law.