Commissioner Masit’s job at IEBC illegal, court rules

IEBC chairman Wafula Chebukati (left) and commissioner Irene Masit during an induction forum at the Sarova Whitesands Beach Resort in Mombasa in this photo taken on September 10, 2021.

Photo credit: Kevin Odit I Nation Media Group

The appointment of a 2017 polls loser as a member of the electoral agency was illegal and unconstitutional since she was not eligible for the job, the High Court in Nairobi ruled yesterday.

The court, however, refused to revoke the appointment of Ms Irene Cherop Masit as a commissioner, saying she would remain in office to avoid interfering with the ongoing preparations for the August 9 General Election and to avert any constitutional crisis in the country.

“Whereas this court might be seen as sanctioning an unconstitutionality, the circumstances of the matter call for the maintenance of the prevailing status. It is in greater public interest and good that the preparations for the forthcoming general election are not interfered with, lest the country finds itself in a constitutional crisis,” said Justice Anthony Mrima.

He stated that Ms Masit was not eligible for appointment as a member of the Independent Electoral and Boundaries Commission (IEBC) since five years had not lapsed from the time she contested a parliamentary seat in 2017. She was appointed in September 2021.

The Constitution bars persons who have at any time in the preceding five years vied for any MP or MCA seat from being appointed as commissioner of the polls body.

Ms Masit had in 2017 presented herself for election as Elgeyo-Marakwet County woman rep. She participated in the Jubilee Party primaries but lost. The court ruled that party primaries are part of elections.

“She was ineligible for appointment as a member of IEBC since she had stood for election as an MP in 2017 and lost. Five years had not lapsed at the time of her appointment,” said the judge.

Justice Mrima however said removing Ms Masit from office would not be in the public interest.

He based his decision on various other grounds, including the need to observe the two-thirds gender rule at the helm of IEBC.

“If Ms Masit is removed from office, then the commission will have to operate for a while with only one woman and five men. Such a scenario definitely affects the little gains made on women empowerment,” said the judge while disallowing a petition filed by rights activist Nornael Okello.

The activist stated that the approval of Ms Masit’s appointment by the National Assembly in September 2021 last year and her subsequent appointment by President Uhuru Kenyatta was illegal.

The petition was based on the provisions of Article 88(2) of the Constitution, which states that "A person is not eligible for appointment as a member of the commission if the person has, at any time within the preceding five years, held office, or stood for election as a member of Parliament or of a county assembly; or is a member of the governing body of a political party; or holds any state office".

In its verdict, the court concurred with the activist that at the time Ms Masit was appointed, the five-year period had not lapsed.

Very high gear

However, Judge Mrima explained that, while many other women were qualified for the job, recruitment of Ms Masit’s replacement could not be completed before the next elections.

“The commission is in a very high gear in its preparation and committees within the commission with specific mandates must be in place and the removal of any of its members will have to affect the performance of such committees,” said Justice Mrima.

“It is in public interest that an ideal environment be created for the commission to discharge its constitutional mandates. The converse will not be fitting for our country,” he added.

He noted that the courts would be handling petitions after the elections, an engagement in which the IEBC is highly involved.

“That calls for the important involvement of all those who took part in the preparations for the elections, otherwise the commission may find itself strained. It is based on the foregoing that this court finds it prudent to allow her to remain in office,” said the judge.

He also rejected the petitioner’s claims that the appointment of four IEBC commissioners – Ms Juliana Cherera, Mr Francis Mathenge, Ms Masit and Mr Justus Abonyo – contravened the two-thirds gender rule.


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