IEBC reconstitution in limbo as court quashes changes to law

IEBC Select Panel Chair Nelson Makanda, his Deputy Charity Kisotu and other commissioners during the media update on the recruitment process. [File, Standard] 

The reconstitution of the electoral body suffered another blow on Friday after the High Court quashed changes to the law.

A case filed by Busia Senator Okiya Omtatah, and supported by 13 opposition Senators, has rocked the Independent Electoral and Boundaries Commission (IEBC).

The High Court declared that last year’s amendments to the IEBC Act were unconstitutional.

As a result, the appointment of the seven-member selection panel and subsequent inclusion of the opposition members to the panel through the National Dialogue Committee (Nadco) is now null and void.

Unless the Court of Appeal intervenes, both the government and the opposition will have to go back to the drawing board and use the law as it was before the 2023 amendments to constitute a new body.

If Kenyans must wait for MPs to amend the law again, then both houses of Parliament will need to consider fresh amendments before a new team is constituted.

This comes as time runs out to prepare for the next General Election, with the IEBC failing to meet the deadline for reviewing constituency boundaries.

In his verdict, Justice Lawrence Mugambi said that the Senate had not been forthcoming about what transpired regarding a report that raised pertinent issues about the selection of the panel to recruit the commissioners.

According to Justice Mugambi, the withdrawal of the Senate Standing Committee on Justice, Legal Affairs, and Human Rights report from the House floor meant that public views were trashed without consideration.

“The respondents have not been transparent about what happened to the public views that were gathered and which informed the Senate Committee’s report, leading to recommendations for amendments after the report was withdrawn without debate,” said Justice Mugambi.

He pointed out that although the National Assembly claimed that it had conducted public participation, this did not absolve the Upper House from scrutiny for failing to do the same.

“In the circumstances, I find that the processing of the Bill in the Senate violated Articles 118 (1) (b) and 10(2) (a) of the Constitution hence the ensuing Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023 is unconstitutional null and void,” he ruled.

Omtatah, in his case, argued that the IEBC selection panel was appointed using an illegally passed law. He claimed the Senate irregularly passed the law without considering the views, opinions, and report of the committee.

The Act established a seven-member IEBC selection panel made up of two persons from the Parliamentary Service Commission, one nominated by the Public Service Commission, Political Parties Liaison Committee and the Law Society of Kenya, and two nominated by religious organisations.

After the law came into force, President William Ruto appointed Bethuel Sugut, Euralia Atieno, Charity Kisotu, Evans Misati, Benson Ngugi, Nelson Makanda, and Fatuma Saman to the Selection Panel on February 27, 2023.

But Omtatah submitted that as a member of the Senate Committee on Justice and Legal Affairs, they received the Bill from the National Assembly and subjected it to public participation before proposing changes, including excluding representatives from the Political Parties Liaison Committee.

According to the Senator, the committee’s chair Hillary Sigei tabled the report on January 19, 2023 during the morning session. Still, he said, Speaker Amason Kingi directed that it be debated and voted during the afternoon session.

“We were surprised when we resumed the afternoon sitting and found that the Speaker, in collusion with the chairman, had withdrawn the report on our recommendations and directed that it be passed in its original form without our input,” he said.

He believed the court should declare that the Senate Speaker should have rejected the withdrawal of the committee’s report, as it was already the property of the House.

Omtatah also sought a declaration that the IEBC (Amendment) Act 2023 is unconstitutional.

The case was backed by 13 senators, including the minority party leader in the Upper house Edwin Sifuna.

The Senate, National Assembly, Attorney General and the panelists opposed the case.

In its reply, the Senate argued that both houses of Parliament had invited Kenyans, including Omtatah, to participate in the amendment process.

Its lawyer Edward Libendi submitted that the case needed to be clarified on what the grievance was.

“We, therefore, submit that the IEBC (Amendment Act No 1 of 2023) is constitutional. The petitioner merely makes general assertions and quotes various Articles of the Constitution without demonstrating how the impugned Act violates the Constitution,” said Libendi.

In the meantime, the Lower house argued that the court had no powers to entertain the case as it was being invited to creep into the legislative functions of Parliament.

“The petition is, therefore, a threat to the doctrine of separation of powers and is an encroachment to the legislative mandate of Parliament. If the orders sought are granted, they will amount to the interference of Parliament’s constitutional legislative powers by the Judiciary,” argued National Assembly’s lawyer Joshua Kiilu.

The seven panelists, in their responses argued that the case ought to be thrown out. According to them, it was unfair for Omtatah not to oppose the motion for amendments before the house only for him to run to court. They asserted that the court ought to look at his case with a different eye as a lawmaker and not a mere mortal.

“Can a sitting Senator, a member of a political party, a State Officer, and a member of JLAHRC, in good faith, purport to champion the public interest? Is it possible for the Petitioner, in these circumstances (the chairperson of JLAHRC withdrew the amendments after consultation with members of JLAHRC), act in the public interest?” they paused.

Nelson Makhanda, the chair of the panel, swore a supporting affidavit in favour of dismissing the case.

He argued that the importance of the amendments was to change the composition of the selection panel.

According to him, the exercise was crowned by a rigorous exercise and engagement of all stakeholders.

According to him, the net effect of the orders would mean that the panel ought to be disbanded despite having started working.