President William Ruto is to start the process of appointing a seven-member panel that will select six individuals to fill vacancies at the electoral agency that arose as a result of retirements and resignations.
Only three positions have been declared and gazetted vacant.
The Independent Electoral and Boundaries Commission (Amendment) Act, 2023 came into force on February 6, opening the door for Dr Ruto to form a panel for the purposes of appointing the chairperson and members of the IEBC.
Unlike his predecessor Uhuru Kenyatta who had influence in the team, as the majority of the members were his appointees from the Parliamentary Service Commission (PSC), Dr Ruto’s influence was clipped by the court.
The PSC had four slots out of seven then. Following a court judgment and subsequent amendment of the law, the PSC will have two slots. However, Dr Ruto will have an indirect appointee from the Public Service Commission.
It means he will have three members against four nominated by the civil society.
The November 2021 judgement by Justice Anthony Mrima declared as unconstitutional Section 2(2)(a) of the IEBC Act that allowed the PSC to nominate four members of the selection team.
“A selection panel with a majority of its members nominated by one entity cannot pass the threshold of being independent and fair. The dominance of the members appointed by one entity raises legal eyebrows,” Justice Mrima said.
He added that having the panel dominated by PSC nominees went against good governance, transparency, integrity, social justice, equity, inclusiveness, equality, patriotism, national unity and many other principles.
“It is not far-fetched to imagine the likelihood of the majority of the members of the selection panel nominated by PSC to favour some candidates. Such preferred candidates may eventually become commissioners of the IEBC and their independence would naturally be put into question,” Justice Mrima said.
President influence trimmed
The judgment led to the amendment of the IEBC Act, which trimmed the president’s influence and allowed political parties to have a role in the formation of the panel.
The IEBC (Amendment) Act, 2023 introduced an entity called the Political Parties Liaison Committee in the panel and allocated it a membership slot.
The parent Act (IEBC Act, 2011) provides that the president should name the panel at least six months before the lapse of the term of the chairperson or member of the commission. Alternatively, he can appoint the team within 14 days after the declaration of a vacancy in the office of the chairperson or member of the commission.
The IEBC currently has only one member – Irene Masit – who is on suspension.
The panel will be seeking persons to fill vacancies that occurred after the retirement of IEBC chairman Wafula Chebukati and commissioners Boya Molu and Yakub Guliye.
Their positions were declared vacant by President Ruto in October 2022 ahead of their exit on January 17, 2023.
Vice-chairperson Juliana Cherera and commissioners Francis Wanderi and Justus Nyang’aya resigned to avoid a tribunal chaired by Appellate Court Judge Aggrey Muchelule that is investigating their “misconduct” in relation to the 2022 General Election.
