High Court orders immediate recruitment of new IEBC Commissioners

The High Court decision to order an immediate recruitment of new IEBC Commissioners has exposed the constitutional vacuum that the talks between Azimio la Umoja One Kenya coalition party and Kenya Kwanza created in the name of a political truce.

In her decision, High Court Judge Mugure Thande said the political truce does not override the Constitution.

Constitutional lawyers say the country faces a constitutional crisis with IEBC expected to have started boundaries delimitation and conclude it by end of this month.

Justice Thande directed that the current IEBC Selection Panel moves with speed and immediately recruits new Commissioners including their Chair.

The process was put on hold following the constitution of the bi-partisan talks where both Azimio and Kenya Kwanza fronted talks teams seeking to find among others the best formula to replace ousted and retired Commissioners.

“I reject the notion that the political question doctrine should override the very explicit constitutional provisions and that the prevailing circumstances should be allowed to infringe on the rights enshrined in the Constitution,” the judge ruled.

Justice Thande further said in her ruling that the intervention of the court is therefore justified more so because the bi-partisan talks are, to the best of her knowledge, not anchored in either the Constitution or the law.

The High Court's decision brought about by a case filed by Adan Mohamed who claimed that failure to recruit IEBC Commissioners in time had violated the rights of constituents who were to hold by-elections, for instance Banisa Constituency after the MP died in March last year.

Constitutional lawyer Dr. Eric Komolo said: “We are already in a constitutional crisis..IEBC as one of independent institutions has an ongoing mandate...by-elections and boundaries.”

Political pundits argue that it was a bad idea to allow disbandment of the IEBC without a laid down frame work to have new commissioners in office.

“From a pure legal perspective, IEBC should in place by now...there is a constituency that has no MP since last year march, they have a right to be represented,” said Dr. Komolo.

Mathare MP Anthony Oluoch, on his part, said: “The boundaries review is required to be done after 10 years, not later than 12 years, this expires in March...there will be a lacuna...there are constituencies that will cease to exist.”

Some constituencies had been ring-fenced for the period and were to cease existing after the boundaries review.

On June 23, IEBC in its boundaries review plan increased the population quota from 133,000 to 164,015 having divided the population at the time 47.5 million with the stipulated 290 constituencies.

“Those constituencies will be difficult to allocate even CDF to them...there were about 30 like Othaya, Ndaragwa and several others,” said MP Oluoch.

The National Dialogue Committee report had laid down a framework on the recruitment of the IEBC team but the document is still gathering dust in Parliament.