IEBC chairperson Erastus Edung Ethekon.
The newly reconstituted Independent Electoral and Boundaries Commission (IEBC) is staring at major hurdles that threaten to derail its operations with the 2027 General Election fast approaching.
There is a court case stopping the swearing-in of the new poll officials. The commission chaired by Erastus Ethekon is also grappling with other headaches like budget cuts, huge pending bills, delayed boundaries delimitation and the opposition’s disapproval.
President William Ruto gazetted the chairperson and commissioners of the IEBC on June 10, but their appointment is a matter before court.
In May, the High Court issued conservatory orders stopping the gazettement and swearing-in of the new election officials. This is after a petition was filed challenging the nomination of the officials. The petitioners alleged the President acted unlawfully and they claim some of the nominees are not eligible to hold office.
The petitioners argued that the nominations violated various constitutional provisions such as the list of nominees failing to reflect Kenya’s ethnic and regional diversity as well as excluding persons with disabilities.
Further, they said that the nomination was done without consulting the opposition, and this violated the Constitution, the IEBC (Amendment) Act, and recommendations of the National Dialogue Committee Report.
The petitioners also claimed that the selection process lacked merit because some candidates scored poorly during interviews, while others have integrity issues.
The court is scheduled to make a judgment in the case next week on July 8.
President Ruto’s economic adviser Moses Kuria said due to the current legal stalemate, the country may not be prepared to hold credible elections in 2027.
“The swearing-in of the IEBC team has been stopped by the court. In another 39 days, we will start the 24-month countdown to the 2027 elections. (Johann) Kriegler told us that there cannot be a free and fair election if we don’t have a commission in place two years before the election,” said Mr Kuria.
“Going by our litigious nature, this case will go all the way to the Supreme Court. It may go on until September 2027. So the current administration will continue being in office in the absence of an election,” he added.
Lack of confidence
As the court case continues, opposition politicians have expressed their lack of confidence in the IEBC nominees. They said that they were excluded during the process of picking the nominees, adding that the new team is politically compromised.
They accused President Ruto of manipulating the selection process, claiming it is a strategic move to rig the 2027 elections. The opposition alleged that the Head of State appointed individuals with close ties to the State House and the ruling party.
“The so-called broad-based government cannot purport to consult only among themselves. They must also consult us,” the opposition said in a statement.
“Failure to establish a commission that commands the trust of Kenyans and all concerned parties may set the stage for rigged elections in 2027, which Kenyans will not accept,” the statement added.
Should the IEBC nominees eventually be sworn in, their immediate problem will be lack of enough money to conduct pending by-elections.
IEBC Chief Executive Officer Marjan Hussein Marjan said the fate of the six vacant MPs’ and MCAs’ seats is unknown because of lack of cash for by-elections.]
IEBC Chief Executive Officer Marjan Hussein Marjan in Nairobi on March 14.
The areas in need of by-elections are Kasipul and Mbeere North constituencies, as well as four county assembly wards; Chemundu/Kapng’etuny, Kariobangi North, Metkei and Nanam. The by-elections require a resource envelope of Sh215.84 million, which the Exchequer is yet to allocate to the IEBC.
To make matters worse, the IEBC has a deficit of Sh76.5 million for another 16 by-elections after the National Treasury allocated only Sh788 million instead of the Sh864.5 million that the commission had requested.
The IEBC also faces a budget deficit of at least Sh7.2 billion. The commission’s CEO Mr Marjan said the agency had asked for Sh61.7 billion, but the amount was slashed to Sh57.38 billion.
At the same time, the IEBC has Sh3.7 billion pending bills owed to suppliers of goods and services.
Another matter that the new office must deal with swiftly is the issue of boundaries delimitation. Members of the National Assembly have called for clarity.
Nominated Senator Esther Okenyuri said once a new IEBC office is sworn in, the commissioners should come clean on the issue of boundaries. She said the IEBC must appraise Parliament on what will be done to ensure immediate review or sub-division of large constituencies.
She cited Article 89(2) and (3) of the Constitution which puts the responsibility of reviewing constituency and ward boundaries, at intervals of not less than eight years, and not more than 12 year; at the doorstep of the IEBC.
“We want to know the measures in place to ensure immediate review or sub-division of large constituencies in places like Kisii, Nyamira, and Migori ahead of the 2027 General Election, to promote equitable representation,” said Ms Okenyuri.
Nandi Senator Samson Cherargei said the IEBC should now give a clear roadmap on how the delimitation will be carried out.
Nandi Senator Samson Cherargei.
But, lawyer Bobby Mkangi, who was part of the team that delivered the 2010 Constitution, said the country is in some sort of quagmire. The constitutional expert said that should the IEBC consider undertaking the delimitation exercise, it will face a myriad of hurdles that could throw the process into total disarray.
Mr Mkangi said the first challenge will be whether the new IEBC office would be doing the process legally since the timeframe for the exercise had lapsed.
However, he said, once sworn in, the poll officials can go to court for an advisory so that whatever action they take is within the precincts of the law.
Lawyer Paul Mwangi agrees with Mr Mkangi. He also said that such an exercise involves political bargaining and consultations and, therefore, there is no time for such negotiations.
