IEBC Amendment Act nullified over flawed public participation process

The selection of the Independent Electoral and Boundaries Commission (IEBC) is in jeopardy after the High Court nullified the law setting out the formula for recruiting the panel members.

Justice Lawrence Mugambi declared the IEBC Amendment Act of 2023 which lays out the criteria for choosing the members to sit in the panel.

Busia Senator Okiya Omtata had petitioned the High Court to declare the amendments unconstitutional because they were made without the involvement of Kenyans.

The amendments included removing the Judicial Service Commission (JSC) and replacing it with the Law Society of Kenya (LSK) and the Association of Professional Societies of East Africa.

The law changes also removed the supervision of the selection panel from the Public Service Commission to the Parliamentary Service Commission meaning the institution and process are firmly in the grip of politicians.

Omtata told the High Court in March last year that the IEBC Amendment Bill was unprocedurally withdrawn by the then Senate Legal Committee chairman Hillary Sigei, against the Senate Standing Orders, and therefore the law relied upon to form the selection panel was defective.

The speakers of the National Assembly (NA) and the Senate had defended the amendments, during the hearings in court, arguing that adequate public participation was conducted before the amendments process was undertaken.

However, Justice Mugambi faulted the process because the proposals collected during the public participation were not considered and included during the amendments since the Bill was prematurely withdrawn from the Senate, as proved by Omtata.

The judge said that the fact that the Bill could have gone through public participation in the NA cannot absolve the Senate, which is constitutionally independent of the National Assembly, from appraising itself to the issues of concern to the people as far as this legislation it intended to pass is concerned.

Unconstitutional

Mugambi said in the circumstances, he finds the processing of the Bill in the Senate violated Article 118 (1) (b) and 10 (2) (a) of the constitution hence the ensuing IEBC Amendment Act is unconstitutional, null and void.

"Conducting public participation and discarding the report without deliberating on the same shows no appropriate or any consideration was given to the public views by the Senate," stated Justice Mugambi.

"Parliament cannot be allowed to circumvent or take public participation lightly. Apart from representative democracy, our constitution is a participatory democracy where views of the people must be taken into account when decisions are being made including the passing of legislation."

The amendments created a legal architecture that deprived the IEBC of its independence.

The Act grants political parties five slots out of the nine members of the selection panel meaning the political parties will have a majority number of panel members hiring the commissioners.

"The proposal (for the Amendments) seeks to reduce the current allocation of the Parliamentary Service Commission (PSC) which nominates four out of the seven members of the Panel. This would be achieved by allowing "the Political Parties Liaison Committee (PPLC) established under the Political Parties Act of 2011 and the Public Service Commission (PSC) to each nominate one member of the Panel," reads the Bill tabled in Parliament by majority leader Kimani Ichungw'a in January 2023.

The United Democratic Alliance (UDA) and the Orange Democratic Movement (ODM) who are the majority and minority in the National Assembly respectively, are allocated a slot each.

The PPLC is allocated two slots which are shared between the political parties as well, and the Parliamentary Service Commission was allocated one slot.

The rest were allocated to the religious institutions which got two slots and the professional associations including the LSK and the Institute of Certified Public Accountants of Kenya (ICPAK) who got one each.

However, owing to Justice Mugambi's ruling, the process of selecting the panel's members is put on hold until the process starts afresh and is done according to the constitution.