IEBC crisis deepens as nominees vetting stalls

Uncertainty hangs thick in the air of Parliament as lawmakers find themselves caught in a tight knot of legal and political dilemmas.

The High Court injunction freezing the vetting of President Ruto’s IEBC nominees has left the Justice and Legal Affairs Committee in limbo.

The committee is unable to move forward and vet the team led by proposed chairman Erastus Edung, yet it is acutely aware that time is slipping away.

Other nominees to the helm of the electoral management agency are Registrar of Political Parties Ann Nderitu, Moses Mukhwana, Mary Sorobit, Hassan Noor, Francis Odhiambo and Fahima Abdallah.

With each passing day, the IEBC crisis festers, sending the signal that Kenyans could go to yet another election with an unprepared electoral commission.

The wait for the court’s final ruling, expected today, has only deepened the paralysis.

Should MPs defy the injunction and proceed with the vetting, they risk plunging the country into a fresh constitutional crisis, one where Parliament and the Judiciary stand in open confrontation.

Yet, if they wait indefinitely, the IEBC, already reeling from the negative implications of the delayed appointments, will remain leaderless and unprepared for the looming 2027 elections.

In an appeal, the National Assembly stated that since the vetting had been entrusted to the Justice and Legal Affairs Committee, the court lacks authority.

The august House said the court’s injunction was premature and injurious to the process and the right to public participation.

Despite the position, the committee chaired by Tharaka MP Gitonga Murugara did not conduct the vetting as scheduled and advertised.

The nominees were to face the committee on Tuesday, after which the committee was expected to issue a report for debate in plenary on Wednesday.

Speaker Moses Wetang’ula’s silence, after promising to give directions on the matter, has only added to the tension.

Rarieda MP Otiende Amolo had implored the Speaker to declare the fate of the vetting process. Otiende, a member of JLAC, warned of deeper uncertainty.

“You may have to give further guidance to us as to whether, given the wording of that decision, the entire process is suspended until determined,” Otiende said.

“Whether time stopped running from the time that order was issued so that the 14 days are extended and whether, depending on the decision made within the time limit, that process can still be undertaken.”

Wetang’ula’s failure to issue clear guidance by press time yesterday has left MPs adrift, torn between legal obedience and political urgency.

The delayed reconstitution of the electoral body has worsened fears about the country’s preparedness for the 2027 general elections.

Elections Observation Group national coordinator Mule Musau told the Star the delay is a great concern, especially for the pending electoral processes.

“It is a big concern to us; we are very worried as it hurts the electoral processes to be conducted by the commission,” he said.

Musau faulted the petitioners for jumping the gun, arguing their issues could have been handled during the vetting process.

“However much it is legitimate, it serves to delay the appointment process. I think the petitioners should have waited for the process in Parliament and lodged their concerns.”

The court’s decision can be viewed as a setback to the long-delayed process of reconstituting the Independent Electoral and Boundaries Commission, which has remained incomplete for two years.

A number of constitutional lawyers have weighed in on the matter, saying the courts cannot stop House proceedings.

Constitutional lawyer Ekuru Aukot, while admitting that Parliament cannot be injuncted, said the courts can only come in depending on the gravity of injustice.

“Ideally, courts cannot injunct Parliament, but if there is, for example, an injustice that has been presented and that depends on evidence – I have not read the affidavits of the petitioners so, I don’t know the evidence they have presented to the court,” Aukot said.

“I think one of the arguments that can fly is the idea of the state officer, which does not concern other nominees apart from Anne Nderitu. Nderitu is a state officer by virtue of the fact that the constitution says that a state officer cannot run for such an office constitutionally or even if it is created by an Act of Parliament.”

Lawyer Abdikadir Mohammed agreed, stating that courts can only review the outcome of a parliamentary process.

Abdikadir, who served as adviser to retired President Uhuru Kenyatta on constitutional and legal matters, argued that under the doctrine of separation of powers no branch of the government can dictate to the other on how to conduct its business.

“Courts cannot injunct Parliament. They can decide whether what Parliament has done is not right at the end of process. They can decide if the product is constitutional or not but they cannot stop the process,” Abdikadir told the Star on the phone.

“The courts are not superior to any of the other arms of government.”

In 2014, then National Assembly Speaker Justin Muturi warned courts of judicial overreach, saying Parliament cannot be injuncted by any arm of the government.

“Parliament’s very cardinal role of oversight is being faced with a great threat, and I speak without any fear of contradiction, this threat comes from the Judiciary,” Muturi stated.

“The courts, like I said, should remember that Parliament has its constitutional mandate and should be left to perform its functions.”

The IEBC process has been bogged down by legal bottlenecks from the setting up of the selection panel, the shortlisting of applicants, to now the vetting process of the nominees.

In the current case, activists Boniface Mwangi and Kelvin Omondi want the nominations halted on allegations that some of the proposed names are ineligible.

They allege that the nominations were made without proper public participation as outlined in the Nadco report.

The activists allege that some of the names were added unconstitutionally, citing interference by the Executive.

The decision to be rendered today will be crucial in determining how soon the country will have a fully constituted electoral body.

Meanwhile, the opposition is watching with sharpened scrutiny, ready to pounce on any misstep, as civil society warns of a deliberate erosion of electoral integrity. And beneath it all, the clock ticks.

The longer the standoff drags on, the more the public’s faith in the electoral system frays.