Kenya faces constitutional crisis over delayed IEBC appointments

Legal battles and a lack of political will have left several constituencies and wards without elected representatives and stalled the critical task of boundary delimitation.

A selection panel that was established to identify and recommend qualified commissioners has been tied up in numerous court cases, paralyzing the process.

For months, the towering Anniversary Towers in Nairobi, which houses the IEBC, has remained largely inactive. 

The IEBC secretariat continues to handle basic administrative tasks, but key decisions that require the presence of commissioners remain stalled.

The stalemate began after the retirement of former IEBC Chairman Wafula Chebukati and Commissioners Abdi Guliye and Boya Molu, who completed their six-year non-renewable terms. 

The situation was worsened by the exit of the "Cherera Four" commissioners, who resigned following internal disputes stemming from the contentious 2022 presidential elections.

Efforts to appoint new commissioners have faced significant hurdles. A selection panel tasked with identifying suitable candidates has been bogged down in prolonged legal battles. 

Two petitions are currently pending in Nairobi and Kiambu courts, with one petitioner challenging the lack of regional balance in the panel's composition.

The absence of IEBC commissioners has created a domino effect, forcing the electoral agency to seek guidance from the Office of the Attorney General regarding pending by-elections. 

According to a statement from the Attorney General, without commissioners, no gazette notices can be issued to facilitate the conduct of by-elections. This, the Attorney General warned, would violate the Constitution.

This impasse has left voters in Banisa, Magarini, and Ugunja constituencies without representation, with no immediate resolution in sight. 

Additionally, eight wards, including Kisa East Ward in Kakamega, Chewani Ward in Tana River, and Nyamaiya Ward in Nyamira, are also affected.

Boundary delimitation, a critical IEBC mandate, has similarly been placed on hold. The last boundary review was completed in March 2012, meaning the next review should have been concluded by 2022. 

Last month, Members of Parliament proposed a bill to extend the boundary review period from the current eight years to twelve years, but this measure remains unimplemented due to the IEBC's paralysis.

If and when the boundary review is conducted, it could lead to an increase in the current 1,450 wards, the merging of some constituencies, or the splitting of others. However, the total number of constituencies is constitutionally capped at 290.

The IEBC’s current state of inaction has also cast a shadow over preparations for the 2027 General Elections. 

With no commissioners in place, critical timelines and processes could be jeopardized, leaving the country at a crossroads.