IEBC paralysis persists ahead of deadline to conduct by-elections

President William Ruto sacked Commissioner Irene Masit after a tribunal recommended her removal for gross misconduct. Although National Assembly Speaker Moses Wetang'ula declared Banisa seat vacant following the death of MP Kullow Hassan in an accident in March this year, the constituents are still waiting to elect a new leader.

Wetangula's declaration paved the way for the electoral commission to conduct the Banisa by-election within 90 days, which is expected to lapse in July.

"Pursuant to Articles 101 (4) (a) and 103 (1) (a) of the Constitution as read with section 16 (3) of the Elections Act, 2011, it is notified for the general information of the public that the seat of the member of the National Assembly for Banisa constituency elected under Article 97 (1) (a) of the Constitution has become vacant with effect from the 29th March 2023," the April 20 Gazette notice states.

Road accident

Constituents of Kisa East Ward in Kakamega are also unrepresented after their MCA Stephen Maloba was stabbed to death. Early this month, Tana River MCA Hamisi Idd died in a grisly road accident on the Garsen-Malindi highway.

Since the Constitution does not anticipate a by-election outside the 90 days' period, it is a wait-and-see - whether Azimio and Kenya Kwanza teams involved in the bipartisan talks will go back to the negotiation table and address the reconstitution of IEBC.

The Kenya Kwanza team led by Bipartisan Committee Co-Chair George Murugara has insisted that the talks should resume on Tuesday next week failure, to which the IEBC selection panel will proceed with the recruitment of new commissioners.

Speaking on Spice Fm yesterday, Murugara said that although Azimio claims to have distanced itself from the talks, they are yet to get any official communication in that regard.

"That was said at a public rally and we will only believe they have withdrawn through our signed agreement that has the exit clause. Pronouncements in a political rally may be what they have in mind but it has to be actualised, so we are waiting for that and we also know that in the meantime there could be a change of mind because this is for the good of the people," he said.

During a rally at Kamukunji grounds in Nairobi on Tuesday, Azimio announced that going forward, they will not engage in bipartisan talks.

Civil disobedience

Democratic Action Party - Kenya (DAP-K) party leader Eugene Wamalwa said there will be no more bipartisan talks after the Kenya Kwanza regime imposed punitive taxation measures on Kenyans saying the focus now would be civil disobedience including refusal to pay taxes to force Ruto to resign from office.

But Murugara said Kenya Kwanza is hopeful that Azimio will show up next week to discuss the IEBC issue.

He revealed that the reconstitution of IEBC was a common issue and they are willing to have a sit-down and sort it out as a matter of urgency.

"We are prepared to sit down and negotiate on the issues of the selection panel but we maintain that if they do not come back, so be it. We will go back to the law have the selection panel take effect and have a new commission in place," he said.

On claims by Azimio that he refused to sign a letter to suspend the selection panel led by Dr Nelson Makanda, Murugara said Azimio had demanded that the committee writes to the team to stop them from undertaking their roles.

"But since there is no law backing us to instruct an independent institution as Kenya kwanza we were against the idea so we agreed to request the selection panel on its own volition and most likely because they are human beings and care for the nation, they could opt to suspend and that was our agreement," he said. He however said Azimio went behind his back and redrafted the letter.

"So I wrote the letter of request but my co-chair (Otiende Amollo) redrafted the letter and made it a resolution of the committee which wasn't the case and because of that, I refused to sign that letter because that was not what we agreed upon," Murugara said. So what next for IEBC? Can the electoral agency proceed to undertake a by-election in the absence of the commission? Can the secretariat organise and undertake a by-election? Lawyer Suleiman Bashir said that's impossible as the Constitution doesn't envisage that.

"A holistic reading of the Constitution on the conduct of an election including a by-election indicates that the IEBC, including the commissioners, should be involved in all stages of the election. The jurisprudence on the running of the business of the IEBC provides for the centrality of the commissioners as the "linchpin of the Commission," Bashir told The Standard

Article 101 (4b) of the Constitution does not expect the holding of a by-election outside 90 days. This means in essence, where a vacancy arises in a political office such as that of an MP, senator or MCA, a by-election should be held within 90 days to offer the people an alternative continued representation of the citizenry.

The commission as a body functions in a manner that guarantees internal accountability, as depicted by the uneven number of commissioners. The courts have discussed the place of commissioners in relation to the secretariat.