President Uhuru Kenyatta is at fault for not yet starting the legal process of appointing new IEBC commissioners after April 14. Constitutional expert Steve Ogolla says the procedure clearly prescribed in the laws that “every law student, no, every highschool student can read it and draw correct conclusions.” Here are the details of what must be done if the Independent Electoral and Boundaries Commission is lacking the quorum of members – step by step:
The resignation of Dr. Roselyn Akombe on October 18, 2017 did not open options for immediate replacement. Article 134(2)(b) of the Constitution does not permit the President to appoint new Commissioners during temporary incumbency.
However, following the resignation of Commissioners Connie Maina, Margaret Mwachaya and Paul Kurgat, the law on replacement is crystal clear: The IEBC is now lacking quorum to make any decision. That which requires action.
Section 7A of the IEBC Act, as amended by the Election Laws (Amendment Act of 216) provides that whenever a vacancy arises in the Commission, the President shall publish a notice of a vacancy in the Kenya Gazette within 7 days of such vacancy.
Paragraph 1(1) of the First Schedule of the Act further requires the President to appoint a Selection Panel within 14 days of the declaration of such vacancy.
Nomination of Selection Panel
Paragraph 1(2) of the Schedule provides that the Selection Panel shall consist of four persons nominated by Parliamentary Service Commission and five persons nominated by religious groups (Kenya Conference of Catholic Bishops, Supreme Council of Kenya Muslims, Evangelical Alliance of Kenya, Hindu Council of Kenya).
Paragraph 3 of the Schedule requires the Selection Panel to commence recruitment within seven days of its appointment.
Nine Proposals for Commissioners
Paragraph 3(4) of the Schedule provides that the Selection Panel shall select nine persons qualified to be appointed as members of the Commission and forward the names to –the President for nomination of six persons for appointment as Commissioners.
Section 5(4) of the IEBC Act permits the procedure set out in the First Schedule to be applied with necessary modifications, whenever a vacancy occurs in the Commission.
What this means is that the Selection Panel may forward at least seven names to the President from which 4 Commissioners are to be appointed.
Accordingly, there is no reason, in law, why the President has not appointed the Selection Panel to commence immediate recruitment to fill the vacancies at the Commission.
A “brazen Violation of the Law”
“The refusal to comply with the law is a mysterious decision only known to the political elite”, comments Steve Ogolla. “The silence by the political opposition and IEBC Chairman is equally curious and may only be explained in the context of political convenience or connivance.”
More than one month after resignation of the three Commissioners, and IEBC lacking in quorum to make any decision, there is no movement towards replacement of the four Commissioners. This, Ogolla says, is “a brazen violation of the law, and inexcusable complacency on the part of key oversight institutions of governance.”