- “The commission sympathizes with the people of Banissa constituency who have a right to representation by a person of their choice in the national assembly.”
- “In the absence of the commissioners, no gazette notices may be executed for publication to facilitate the conduct of any by-election."
Image: FILE
IEBC CEO Marjan Marjan has said they will not be able to conduct elections for Banissa Member of Parliament owing to the delayed recruitment of new commissioners.
Marjan, in response to a case filed by one Brian Mbugua, has urged Parliament and the selection panel constituted to fill the vacancies to play their part to avert the continuation of a constitutional crisis.
“The commission sympathizes with the people of Banissa constituency who have a right to representation by a person of their choice in the national assembly,” says the IEBC.
Crucial operations at the electoral agency came to a standstill following the retirement of former chairman Wafula Chebukati and ex-commissioners Abdi Guliye and Boya Mulu in January after serving their six-year non-renewal term.
The other commissioners were pushed out after a falling out over last year's presidential elections.
Since then, Marjan says no policy business has been transacted owing to the absence of commissioners.
In an affidavit, Chrispine Owiye the commission's director of legal services says they sought legal advice from the Attorney General on holding of by-elections in the absence of commissioners.
The AG’s advisory opinion was that the process leading up to the conduct of elections must be authorized and sanctioned by the commissioners.
“In the absence of the commissioners, no gazette notices may be executed for publication to facilitate the conduct of any by-election as the same would lack the sanction of the commission thereby violating the constitution,” said the AG to IEBC.
The process to replace the commissioners has dragged on due to a political standoff between President William Ruto’s Kenya Kwanza and opposition chief Raila Odinga’s Azimio.
But two days ago, the National Dialogue committee announced they were able to settle the matter amicably, signaling an end to the crisis.
Minority leader Opiyo Wandayi said “We have come to an agreement that we shall have a reconstitution of the IEBC selection panel and in this reconstitution, the membership will increase from the present 7 to 9 to encompass various shades of opinions and interest groups and persons.”
The IEBC needs to conduct at least three parliamentary and ward by-elections due to deaths and court orders that overturned victory.
They include the Bannisa MP seat whose holder Kullow Maalim Hassan died after he was hit by a motorcycle in March.
The commission is also expected to gazette a winner for an MCA seat in Garissa following a court order after a recount of votes.
Article 101 of the Constitution, provides that a by-election ought to have been held within ninety (90) days of the occurrence of the vacancy in the said office.
Through Lawyer Adrian Kamotho, Mbugua filed the case in court seeking to have the electoral body directed to conduct the by-elections for Banissa Member of Parliament within 30 days.
Mbugua said failure by the IEBC, National Assembly, and the Attorney General to carry out the by-election within the mandated timelines, the people of Banissa Constituency have been deprived of a person of their choice to represent their interests in the national assembly.
He has also asked the court to issue an order directing the selection panel to within 14 days submit to the President, the names of two persons.