A significant obstacle to a smooth administrative operation at the Independent Electoral and Boundaries Commission (IEBC) in the run-up to and in the near bungling of the August 2022 Presidential Election was the delayed filling of the four vacant positions in the Commission.
The now infamous Cherera four were sworn into office in September 2021, hardly a year to the impending General Election of August 2022. The four, including Vice Chair Juliana Cherera, Francis Wanderi, Irene Masit, and Justus Nyang’aya, took up positions that had remained vacant for four years.
The previous holders of the positions, including Vice Chairperson Consolata Nkatha, Commissioners Paul Kurgat, and Margaret Mwachanya, had resigned unceremoniously on April 16, 2018, in a post-2017 General Election boardroom fallout at the Commission. Commissioner Dr. Roselyn Akombe had flown the country hardly a week before the Presidential Election re-run and later announced her resignation on October 18, 2017.
That had left only three Commissioners, including the Chair, Wafula Chebukati, and Commissioners Abdi Guliye and Boya Molu at the Commission for the four years to September 2022, depriving the Commission of the critical collegiate experience and knowledge that accrue from numbers in a team. It is not for nothing that Sec. 5 of the IEBC Act 2011 contemplates the Commission to consist of a chairperson and six members.
The absence of personnel in the four positions in the Commission raised a quorum issue in the run-up to the 2022 General Election. Particularly, litigants who were not happy with the decisions of the Commission in regards to its other key mandate, especially of delimitation of constituencies and wards, challenged those decisions on account of lack of quorum at the Commission when those decisions were made.
At some stage before the Supreme Court in Petition No.12 of 2021 (BBI) settled the matter, the Court of Appeal had set the minimum quorum for the IEBC to execute its mandate at four, with the potential of reversing already taken decisions in the delimitation of boundaries. The appellate court’s judgment had also jeopardized the quickly approaching August 2022 General Election as the Commission, with only a chairperson and two commissioners, could not, for instance, procure equipment and materials for the elections.
The Supreme Court in the BBI case found the IEBC, with just the chairperson and two commissioners, had a quorum when it verified the signatures of the Building Bridges Initiative. “Although paragraph 5 of the Second Schedule of the IEBC Act fixed the quorum at five commissioners, this cannot override the Constitution,” it ruled. Article 250 of the Constitution on composition, appointment, and terms of office of commissions and independent offices states, thus, (1), “Each commission shall consist of at least three, but not more than nine, members.”
Besides, with barely one year to the August 2022 General Election, there were glaring gelling issues in the relations between the four new commissioners and the three old timers at the Commission. Other than the failed bonding in the C-Suite at IEBC, time was also limited for the new commissioners to learn the complexities of their functions amidst critical decisions, some, owing to the delayed release of funds, being taken in the spur of the moment.
A couple of months to the elections, rumours of turmoil in the Commission pitting the old guard against the new kids on the block were rife. The lid to the simmering tensions and division between the two camps in the electoral body blew off at its most momentous time; on the day the Commission announced Presidential Election results of the August 2022 General Election.
The public was treated to split television screens of the two camps; the Chairperson comprising of Commissioners Abdi Guliye and Boya Molu, announcing results at the National Tallying Centre at the Bomas of Kenya, and his deputy’s comprising all the new commissioners denouncing the same simultaneously at a press conference at the Serena Hotel, Nairobi. This could throw the country into an abyss similar to the post-election violence that ensued after the December 2007 General Election.
In the Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated) that ensued afterwards, the petitioner premised much of his case on this split in the Commission. The Supreme Court maneuvered this conundrum skillfully and churned some jurisprudence around the question of whether the role of verifying and tallying votes as received from polling stations countrywide could be undertaken by the chairperson of the IEBC to the exclusion of other IEBC commissioners.
Overall, the biggest conversed question in the consolidated presidential petition was about the split in the Commission at its most momentous time. One would hope that lessons were drawn from that experience and that every effort would be put in place to avoid a devoid of whatever form at the electoral body ever again.
That, however, is not the case. History is, again, repeating itself at IEBC. The template of how we ended up with four fewer commissioners at the electoral body from the 2017 elections heading into the 2022 elections seems to be the favourite for the status quo. Currently, the Commission is not constituted at all. It is only running with a secretariat, the Cherera four being kicked out and the remaining Commissioners, including Chairperson Wafula Chebukati, having retired.
Time is again ticking, gradually but steadily, towards the next General Election, and no one seems to be keen on reconstitution of the Commission. Besides, IEBC has a wide mandate that runs in between general elections, including continuous voter registration, regular revision of the voters’ roll, delimitation of constituencies and wards, and voter education, including human resource functions, none of which is taking place now owing to the quorum hitch. What would happen if a by-election came calling now?
The next General Election may appear far. In reality, however, 2027 is looming large on the horizon. It shatters to imagine that the country will likely be taken through the ordeal of new, rashly hired greenhorns as commissioners at IEBC again in the next General Election.
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