High Court refuses to stop recruitment of IEBC commissioners

The High Court in Nairobi has declined to stop the ongoing recruitment of new Chairperson and six members of the Independent Electoral and Boundaries Commission (IEBC).

Justice Mugure Thande refused to issue interim orders against the exercise as requested by Busia Senator Okiya Omtatah, who claims that the recruitment is unlawful.

The senator wanted court to suspend all actions and activities of the seven-member Selection Panel pending the hearing and determination of the case.

But Justice Thande instead directed the senator and the respondents (the Attorney-General, Speaker of the Senate and the Selection Panel for the recruitment of IEBC commissioners) to file their respective pleadings and prepare for the hearing of the case.

“I decline to grant any orders at this stage,” said the judge as she directed the parties appear in court on April 13 for hearing.

Justice Thande stated that the lawsuit is a matter of great public interest and should be disposed of expeditiously.

At the same time, a lawyer representing the Selection Panel, Mr Mabrak Awadh Ahmed, said he will challenge the powers of the court to hear and determine the dispute. He said he will file an objection to the petition.

Asking court issue the interim orders, Mr Omtatah had said he was apprehensive that the lawsuit will be overtaken by events since the Selection Panel will proceed with its activities and forward names of the nominees to the President for appointment.

“To preserve the matter, there should be form of preserving the case through conservatory orders to ensure we do not act in vain. There are live issues to be addressed,” said Mr Omtatah.

In the dispute filed at the Human Rights & Constitutional court Nairobi, the Senator claims that the Selection Panel was appointed using law that was passed illegally by the Senate.

Hence, he says the Panel is unconstitutional and its activities are null from the beginning. He wants court to invalidate the said law.

“We are talking about a matter of procedure of enacting legislation - IEBC (Amendment) Act No.1 of 2023 -which I have called to question,” the senator told court.

He contends that the Act is unconstitutional because senators passed it without considering report of the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights.

“The Chairman of the Senate's Standing Committee on Justice, Legal Affairs and Human Rights was forced by the Executive to ambush the committee members. He unilaterally ambushed the Committee members and the House when he withdrew the Committee's report which he had tabled on behalf of the Committee, to avoid it being debated and subjected to a vote,” claims Mr Omtatah.

“There was no resolution of the Committee to withdraw the Report, even though such resolution would be meaningless because the law does not provide for such,” he adds.

By withdrawing the report, which had recommended several amendments to the Bill, Mr Omtatah says the Bill was passed without amendment.

“The Standing Orders of the Senate are clear that once a report of a committee is tabled in the House, it must be subjected to a vote where it is either adopted (with amendments if need be) or rejected. There is no mechanism for the withdrawal of a committee report,” he argues.

He adds that the report belongs to the committee as a collective and is not owned by the chairperson to be withdrawn by him/her on his/her whims.

Hence, he states that the withdrawal was against the law and that voided the resultant Act of Parliament.

Since it is at the Committee stage that the Bill was subjected to public participation, he says that the effect of the alleged “withdrawal” of the report was that the Bill was passed without subjecting it to public participation.

The law was passed by Senate on January 19, 2023 and was assented by President William Ruto on January 23.

It came into force on February 6 and later President Ruto appointed Bethuel Sugut, Novince Euralia Atieno, Charity Kisotu, Evans Misati James, Benson Ngugi Njeri, Dr Nelson Makanda and Fatuma Saman as members of the Selection Panel.

The panel was tasked with the responsibility of nominating persons for positions of IEBC Chairperson and Commissioners.

Last week the seven-member Panel announced that 925 Kenyans have applied for the vacant positions of the chairperson and six members of the electoral commission. Position of Chairperson attracted 25 applicants.

The Panel is set to publish the list, the venue and the dates for interviewing the shortlisted candidates.

The case will be heard on April 13.

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