IEBC nominees Hassan Noor Hassan, Erastus Edung Ethekon (chairperson), Anne Nderitu and Mary Karen Sorobit.
The High Court has allowed Parliament to proceed with the vetting of President William Ruto’s seven nominees for chairperson and members of the electoral commission, paving the way for the restoration of the polls agency’s leadership.
However, the court barred their formal appointment and swearing-in, should Parliament approve the nominations, pending the determination of a case filed by two voters questioning Mr Ruto’s choice of the seven individuals.
Justice Lawrence Mugambi said the voters, Kelvin Roy Omondi and Boniface Mwangi, had convinced the court that they have a strong case against the President’s decision, citing, among other issues, a failure to observe regional balance in his selection of the commissioners.
There are also questions regarding the eligibility of some of the nominees.
According to Justice Mugambi, the conservatory order stopping the swearing-in is crucial because if the nominees receive parliamentary approval and proceed to assume their roles at the Independent Electoral and Boundaries Commission (IEBC), the court case would be rendered an academic exercise.
This is because even if the court eventually finds that the selection process was flawed and unconstitutional, the removal of a member of an independent commission from office is not done through a court order. Rather, it follows a separate constitutional process involving Parliament.
“The petitioners have satisfied the threshold for the grant of conservatory orders. Pending the hearing, a conservatory order is issued preventing gazettement, taking of the oath of office, or assumption of office by the seven nominees. The vetting may proceed but subject to the order above,” said the judge.
He also referred the case to the Chief Justice for the appointment of an expanded bench, noting that the petition raises substantial questions of law. He directed the parties to await further instructions on the hearing from the Deputy Registrar.
The petitioners’ case rests on three key allegations, which the presiding judge said could not be dismissed, as they touch on the core legal disputes.
First, the petitioners argue that four of the seven nominees - Erastus Edung Ethekon (proposed chairperson), Hassan Noor Hassan, Mary Karen Sorobit, and Anne Nderitu - were ineligible for selection and nomination due to their previous jobs and political affiliations. The other three nominees are Moses Mukwana, Francis Odhiambo, and Fahima Araphat Abdallah.
Secondly, it is alleged that President Ruto failed to consult the Opposition party in the selection process, as required under the National Dialogue Committee (Nado) Report and the IEBC (Amendment) Act, 2024. He is also accused of violating the principle of regional balance.
Justice Mugambi noted that although public interest leaned towards lifting the interim order that had halted parliamentary vetting, the disputed selection process warrants judicial scrutiny.
“The entire process must comply with the Constitution. Without preserving the case, it becomes an academic exercise. The issues raised are substantial questions of law and affect the sovereignty of the people,” said the judge.
He added that the petition raises at least five arguable constitutional questions surrounding the selection process.
Among them: Whether the actions of the Selection Panel violated the Constitution by shortlisting allegedly ineligible individuals; Whether the President was obligated, under the Nadco report, to consult the Opposition in a transparent nomination process; Whether there was regional balance in the President’s nominees, considering the petitioners’ claim that Mr Ethekon and Ms Sorobit are both from the Rift Valley, while the Lower and Upper Eastern regions were excluded; Whether the Selection Panel and the President were duty-bound to publicise the final report and performance results of each interviewed candidate.
The petitioners maintain that the panel’s report and the outcomes of the interviews are vital pieces of information that should have been shared with the public.
“These questions are not frivolous; they raise serious constitutional concerns that the court cannot ignore. The petitioners believe that without a conservatory order, the case will be rendered nugatory,” said Justice Mugambi.
The court also held that the petitioners had demonstrated a credible threat to free and fair elections, as any flawed appointments would become difficult to reverse.
The petitioners argue that Mr Ethekon, Mr Hassan, Ms Sorobit, and Ms Nderitu were not qualified to apply or be selected as IEBC commissioners, due to perceived bias, violation of political neutrality, participation in the 2022 elections, political party membership, and failure to vacate State offices before nomination.
The lawsuit also questions why President Ruto chose Mr Ethekon as chairperson over Mr Edward Katama Ngeywa, who had been recommended for the same position by the Selection Panel.
It further challenges the President’s rejection of Mr Phillip Kakai (Kakamega County), Mr Joseph Kyavoa (Kitui), and Mohammed Abdullahi Abdi (Mandera/Nairobi), who had also been recommended by the panel as commissioners.
Mr Ethekon was selected from a pool of 39 applicants for the IEBC chairperson role, while the six proposed commissioners were chosen from among 1,345 applicants.
