As the clock ticks towards the 2027 elections, the battle for control of the IEBC is raging in court, Parliament and in the public domain.
Despite being touted as an independent elections referee, politicians have always gone out of their way to interfere with the operations of the Independent Electoral and Boundaries Commission.
Protagonists always want to control commissioners and top staff in the belief they will help tilt the results.
As the battle rages, an ally of Prime Cabinet Secretary Musalia Mudavadi has blamed Wiper leader Kalonzo Musyoka for the delayed recruitment of IEBC commissioners.
Amani National Congress nominated MP Hamisi Dena argues that the opposition has intentionally delayed the process by staging an artificial deadlock.
For Dena, Wiper must not be allowed to delay the formation of the selection panel, especially when other bodies have fronted their representatives to the team.
“I therefore ask Kalonzo and his brigade to put their house in order so that we can have a new IEBC,” the MP said.
“He (Kalonzo) should not shift the blame to the President, who has already done his part in declaring the vacancies at the commission and gazetting the process.”
As per the new law, the Parliamentary Service Commission has two slots in the panel, three for the PPLC, two for the Interreligious Council and one each for ICPAK and the Law Society of Kenya.
Whereas the other parties have presented nominees, Azimio is yet to agree on a nominee to represent it under the umbrella of the Political Parties Liaison Committee.
The row, together with two court cases, has made it impossible for the PSC to send the list of the nine nominees to the President for appointment.
The nominees are Caroline Kituk (LSK), Tanui Andrew (ICPAK), Nelson Makanda (Interreligious Council), Fatma Saman (Namlef), Nicodemus Bore (UDA under PPLC), and Evans Misati (PPLC non-parliamentary parties).
Details of the Parliamentary Service Commission nominees are yet to be disclosed while Augustus Muli was nominated by PPLC to represent minority parties.
Of the PSC slots, Ruto’s and Raila Odinga’s parties have two each, being the largest coalitions in the House.
Dena says other nominating bodies and Kenyans should not be held hostage by the fight within opposition ranks.
“The delay in the formation of the IEBC is against the constitutional timelines and the will of the Kenyan people.”
Dena’s call points to the intensifying battle for the control of the IEBC.
The electoral agency has no commissioners, following the exit of the team led by Wafula Chebukati.
In its wake, the country has been thrown into a constitutional crisis, with three constituencies yet to get replacements of their MPs.
A boundary review scheduled by the constitution every 12 years has not been done, thanks to the vacancies.
With less than three years to the next elections, there are yet to be signs a new commission would be in place in the near term.
A blame game has ensued between the opposition and the ruling coalition, with other players pointing to sectarian interests and jostling for jobs.
Kalonzo argues it is President Ruto’s men who have filed court cases to delay the process.
His newfound ally Rigathi Gachagua also accused the government of plotting to rig the next elections, hence the delayed formation of IEBC.
On the other hand, Ruto’s men, Dena being the latest, hold that it is Kalonzo who is seeking to control the recruitment.
They argue that there was no justifiable reason for Wiper to insist on a person “who lost in an open electoral process”.
“This is an injustice to many constituencies and wards that are lacking representation due to lack of IEBC to conduct the by-elections,” Dena said.
Banissa, Ugunja, and Magarini constituencies have no MPs, while some wards have been without representation for many months.
“Those who are slowing down this process must declare their intention. We know people who are derailing the formation so that they blame the government,” Kibwezi West MP Mwengi Mutuse said.
Busia Senator Okiya Omtatah, who has declared interest in the presidency, observed that the interests, not only by persons seeking to influence the electoral process but also the nominees, were at play.
“What is driving people is money. People get paid well in these ad hoc committees. That is why we never get an independent electoral management body,” he said.
“When money is the motivation, it means the highest bidder will have their way. There is no way these ad hoc committees will give us an independent commission.”
At least 16 Azimio parties voted for Augustus Muli in an election presided over by the IEBC and the Office of Registrar of Political Parties in July. Koki Muli of Wiper got seven votes in the poll.
Despite Augustus’s win, Azimio advised the Parliamentary Service Commission that Koki was the coalition’s preferred choice, triggering the row.
Augustus moved to the Political Parties Disputes Tribunal and got orders stopping Parliament from presenting nominees to the selection panel to President Ruto.
Kalonzo’s party then challenged the decision at the High Court and got orders that Augustus be compensated for the expenses he incurred in the PPLC election.
The courts ruled that Augustus won but in the wrong category, prompting his appeal.
When asked about the deadlock, the NLP leader said he was ready to pave the way, but insisted on a decision by all Azimio parties, adding that he was in court justifiably.
“It is unfortunate that Kalonzo is going against the laws of the land, the people and Azimio parties. We want him to leave Kenya to move forward and let the elected nominees form the IEBC,” he said.
A petitioner named Boniface Njogu is also before the Kiambu court suing that persons with disability were not incorporated in the hiring panel.
Justice Dorah Chepkwony is expected to give directions and if possible a ruling on January 25, 2025.
Omtatah says the Chief Justice should form a five-judge bench with a strict timeline to determine the issues in the cases.
Political commentator Tony Gachoka restated this, saying it should be part of the talks CJ Martha Koome is expected to hold with legal scholar PLO Lumumba when they meet Wednesday.
The concerns about the delayed formation of the IEBC intensified after a court on Friday ruled that a law that defined the selection panel was flawed.
Parliament, however, dismissed the assertions that the IEBC crisis was turning for the worse following the court ruling.
Justice Antony Mrima declared the IEBC (Amendment) Act, 2023, as unconstitutional.
But Parliament stated that the referred law was repealed and replaced by the IEBC (Amendment) Act, 2024.
The new Act paved the way for the formation of the selection panel for the recruitment of IEBC chairperson and commissioners, the House said in a statement.
“Therefore, the judgement has no effect on the composition of the selection panel.”
The IEBC (Amendment) Act, 2024, gave a 14-days window for the respective nominating bodies to forward candidates.
Various leaders and experts have called for formation of IEBC early enough for the 2027 election to avert the crisis of the past polls where the commission was put in place at the last minute.
