The Independent Electoral and Boundaries Commission (IEBC) has proposed an amendment to the law to give it exclusive mandate to appoint returning officers and their deputies without sharing their details with the political parties and independent candidates as is the case now.
The Election (General) Regulations mandate the commission to competitively recruit the officers and share the list of those to be appointed to the political parties and independent candidates to enable them make their presentation on the choices.
The regulations demand that the commission should share the details of those to be appointed with the political parties 14 days before formal appointments.
But in the proposal contained in the Elections (General) Amendment Regulations 2022, which have been submitted to the National Assembly, the commission is seeking to do away with one of the most controversial requirements in the law that nearly threw the country into a constitutional crisis in 2017.
This was after the High Court ruled that the appointment of their 290 returning officers and their deputies for the purpose of the 2017 repeat presidential election was illegal.
The judgement, delivered on the eve of the repeat poll, nearly threw the country into a crisis as it was delivered on the 59th day of the 60 days the Supreme Court had ordered the commission to conduct a repeat presidential election.
“The commission did not provide the list of people who were appointed to the political parties and independent candidates at least 14 days before appointment to enable them make any presentation, in so doing, the respondents violated regulation 3(2),” ruled Justice Odunga.
The judgement delivered on October 25, on the eve of the repeat presidential election on October 26, 2017, has been used by critics to prove all that was wrong in the management of the last General Election, especially after the Supreme Court nullified the outcome of the presidential vote.
What would have been a constitutional crisis was saved after the Court of Appeal set aside Justice Odunga’s judgement during a controversial late night sitting that has haunted Attorney-General Paul Kariuki, Chief Justice Martha Koome and appellate judge Fatuma Sichale and retired appellate Erastus Githinji.
The National Assembly must consider the proposals before the House adjourns for MPs to seek fresh mandate in the elections planned for August 9.
The Standing Orders provide that once such regulations are submitted to the House for consideration, MPs must either adopt or reject in their entirety as there is no room for amendment.
However, the regulations are likely to stir political and legal excitement after the commission proposed another amendment that, if approved, would see returning officers have the powers to open ballot boxes in instances where some foreign materials stray in.
However, the commission does not explain what amounts or will constitute materials that will be accidentally inserted in the ballot box.
This appears to be a scheme by the commission to go round the judgement in the 2017 Maina Kiai case in which the Court of Appeal ruled that, once sealed, a ballot box can only be opened through the leave of the court.