Independent Electoral and Boundaries Commission secretariat will have powers to conduct by-elections if MPs approve a proposed legislation currently before Parliament.
The Constitution of Kenya (Amendment) Bill, 2023 seeks to give the commission’s CEO enhanced powers to oversee by-elections.
The Bill is sponsored by Mandera North MP Bashir Sheikh Abdullaih.
The proposal is a complete departure from the current system, where only the commissioners have the mandate to oversee all elections.
The current law has precipitated a crisis where by-elections have not been held in Banisa constituency and a number of wards for months.
This follows the retirement of IEBC Cchairman Wafula Chebukati and his two colleagues and the forced removal of four commissioners.
Banisa MP Kullow Maalim Hassan died on March 29 last year and to date a by-election has not been conducted since there is no commission in place.
It is this quagmire that Bashir’s Bill is trying to cure.
The Constitution under Article 97 (4), (b) however requires that by-elections be held within 90 days of the occurrence of the vacancy.
In the absence of the commissioners, no Gazette notices may be executed for publication to facilitate the conduct of any by-election.
The Bill proposes amendments to Article 88 by inserting a new clause that gives the secretariat power to conduct by-elections when the commission is not constituted.
“The principal object of the Bill is to amend the Constitution to ensure a continuance of the functions of IEBC as per section 4, 7A and 7B of the Act,” the Bill reads.
“Further, the Bill seeks to ensure that in where the commission is not constituted, secretary to the commission can be perform the functions of the commission limited to the conduct of a by-election.”
No serious policy business has been transacted at the commission since the last batch of the commissioners left.
Three other commissioners opted to resign avoiding a tribunal that was set to investigate their conduct during the 2022 presidential election.
They were vice chairperson Juliana Cherera and commissioners Justus Nyang’aya and Francis Wanderi.
President William Ruto sacked commissioner Irene Masit following the recommendation of the tribunal that found her guilty of misconduct.
High Court in February ordered immediate reconstitution of a new commission within 90 days.
The IEBC selection panel led by Evangelical Alliance of Kenya General Secretary Nelson Makanda, which was overseeing the hiring of the new poll chiefs, halted its work to give space to the National Dialogue Committee.
The Nadco report currently before Parliament lays a roadmap for the reconstitution of the electoral agency hiring panel.
It has among others proposed a raft of amendments to the IEBC Act, 2011, that the selection panel be reconstituted.
The committee co-chaired by National Assembly Majority Leader Kimani Ichung’wah and former Vice President Kalonzo Musyoka, also suggested to expand the Panel from the current seven members to nine.