Reprieve for electorates as IEBC reconstitution sets stage for by-elections 

Kenyans who have lacked representation in various electoral units could soon get a reprieve following the near completion of the reconstitution of the Independent Electoral and Boundaries Commission.

Several constituencies and wards have lacked representatives in the National Assembly and county assemblies after the seats fell vacant due to various reasons, including the deaths of the office holders.

The decision by President William Ruto last week to nominate Erastus Edung Ethekon for the position of chairperson of the IEBC could soon see the agency organise mini polls for the vacant units.

The President has also nominated six other persons as members of the commission.

They include Ann Njeri Nderitu (Nyandarua); Moses Alutalala Mukhwana (Kakamega); Mary Karen Sorobit, (Uasin Gishu); Hassan Noor Hassan (Mandera); Francis Odhiambo Aduol (Kisumu) and Fahima Araphat Abdallah (Lamu).

Several constituencies and one county have remained without representation for months and years, despite the Constitution requiring that by-elections be conducted whenever such seats fall vacant.

Banisa, Magarini, Mbeere North, Ugunja, Malava, and Kasipul constituencies are yet to get replacements for their Members of Parliament (MPs), while Baringo County continues to go unrepresented in the Senate.

Banisa Member of Parliament Kullow Maalim Hassan died while undergoing treatment at the Aga Khan University Hospital in Nairobi on Saturday, March 25, 2023.

The second-term lawmaker succumbed to his injuries while in the hospital's ICU after he was involved in a hit-and-run motorcycle accident near Capital Centre in South B.

Magarini seat fell vacant on March 3, 2023, after the High Court Judge Alfred Mabeya nullified his election on the grounds that irregularities, including ballot stuffing, had affected the final results.

Harrison Kombe (ODM) had won the election with 11,946 votes against his closest rival, Stanley Kenga Karisa (UDA), who garnered 11,925 votes. The appointment of Opiyo Wandayi as Cabinet Secretary for Energy by President William Ruto in July last year led the Ugunja seat in Siaya County to remain vacant.

What the law says

According to Section 13, Article VI of the Constitution, MPs cannot hold other government offices during their term without forfeiting their seat.

The constitution mandates the Speaker to issue in writing a declaration of a vacancy in a constituency within 21 days of the occurrence of a vacancy by giving a notice to the IEBC.

The IEBC is then mandated to conduct a by-election that must be held to fill the vacant seat within 90 days.

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In Malava and Kasipul, seats were declared vacant after the area MPs, Malulu Injendi and Charles Ong’ondo Were died in office.

Injendi died on February 18, 2025, while undergoing treatment at Nairobi Hospital, while Ong’ondo was shot dead on Ngong road, Nairobi, by gunmen on a motorcycle on April 30.

The Senate seat in Baringo fell vacant after the death of the sitting Senator William Cheptumo on February 16 while undergoing treatment at Nairobi Hospital.

IEBC provides that if a nominated MP leaves office, the party to which the MP belonged must then write to the IEBC notifying them of the vacancy. The IEBC is then mandated to pick from their existing list of nominees the next in number to occupy the seat.

If approved by Parliament, the newly appointed commissioners will immediately be tasked with overseeing several pending by-elections and laying the groundwork for the 2027 General Election, marking a critical phase in the country's electoral preparedness.

The IEBC has remained partially vacant since the previous commissioners exited office, prompting the need for a new team to steer the electoral agenda ahead of the next national polls.

Lawyer Evans Ogada, who specialises in constitutional and administrative law litigation, notes that further delays may arise due to pending structural gaps, such as inadequate funding and logistical challenges.

“Additionally, amendments to electoral laws or court orders could temporarily hinder by-elections until compliance is achieved with regard to several concerns, including the manner of constitution of the IEBC. The Election Manager must act within the law to ensure timely by-elections unless constrained by legitimate legal or administrative barriers,” said Ogada.

High Court Advocate and Political Analyst Ambrose Weda said the agency will conduct by-elections as a matter of urgency and priority since there are no legal gaps requiring attention before those elections.