Woe for Gachagua as IEBC distances itself from Kindiki's clearence as DP
Somane further argued that, even if the commission had a role to play, it could not fulfil it due to the absence of commissioners.
The Independent Electoral and Boundaries Commission (IEBC) has defended its position regarding the vacancy left by the impeachment of Deputy President Rigathi Gachagua.
In Tuesday's court hearing before a three-judge bench, IEBC lawyer Mahat Somane asserted that the commission has no role in appointing a successor to the deputy president, contrary to an argument presented by Gachagua's lawyers.
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Somane explained that, according to Articles 99 and 137 of the Constitution, the IEBC lacks the statutory mandate to address a vacancy created through impeachment.
He further argued that, even if the commission had a role to play, it could not fulfil it due to the absence of commissioners.
"This is what my professor at Harvard would tell you: constitutional chaos. There is a role to be played by a constitutional body; once you establish there is a role, IEBC cannot play that role," Somane said.
He clarified that the commission's powers are limited by constitutional design, focusing mainly on administrative functions such as maintaining the voter register, as outlined in Section 11 of the IEBC Act.
"If the court were to find that there was a role for us, then we say those are administrative roles which we could still play," Somane added.
Gachagua's legal team had earlier argued that the IEBC should have been involved in clearing the nominee for the deputy president position following the impeachment. They thus wondered how IEBC, which is currently undergoing reconstitution, cleared Kindiki as the DP nominee.
President William Ruto nominated Interior Cabinet Secretary Kithure Kindiki to succeed Gachagua on October 17.
According to National Assembly Speaker Moses Wetang'ula, Kindiki received the necessary approvals from several authorities, including the Kenya Revenue Authority, the Ethics and Anti-Corruption Commission, the Higher Education Board, and the IEBC.
Following this, Kindiki's nomination was submitted to the National Assembly, where it was approved by MPs.
However, Gachagua has filed for a conservatory order to halt Kindiki's swearing-in, pending the outcome of the case.
The bench, led by Justice Eric Ogola, is expected to deliver its ruling on the matter on Thursday, with Justices Anthony Mrima and Freda Mugambi also participating in the proceedings.
