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Omtatah asks court to declare amended IEBC Act unconstitutional


The filling of four vacancies at the IEBC may take longer than anticipated as activist Okiya Omtatah has moved to court to challenge the process of selecting commissioners.

In his petition filed Tuesday, Mr Omtatah challenges the constitutionality of the Independent Electoral and Boundaries Commission (Amendment) Act, 2020 which President Uhuru Kenyatta signed into law on October 28.

The Act, expected to come into force on November 13, provides for the composition of members of the selection panel, which is charged with the responsibility of nominating the chairperson and commissioners of the electoral agency.

Mr Omtatah wants the court to declare the law unconstitutional on grounds that it gives control of the process of selecting the IEBC commissioners and chairperson to the Parliamentary Service Commission.

In the meantime, he wants the court to issue a temporary order suspending the coming into force or implementation and operationalisation of the law until the petition is heard and determined.

Should the court grant him the order, the vacancies will not be filled soon and the commission’s preparations will be disrupted ahead of the proposed referendum and the 2022 General Election.

Majority slots

The petition is based on arguments that the law, particularly Section 2(2)(a), assigns four of the seven slots of the selection panel to the PSC.

“Moreover, Section 3 of the Amendment Act assigns to the Public Service Commission the administrative responsibility of coordinating the recruitment, and specifically the responsibility of receiving the names of nominees from agencies nominating members to the Selection Panel for transmission to the President for appointment,” explains the petitioner.

Other members of the selection panel will include one person nominated by the Law Society of Kenya (LSK) and two persons nominated by the Inter-Religious Council of Kenya.

“The four PSC nominees are in the majority and can gang up to impose their wishes and whims on the other three members of the selection panel,” says Mr Omtatah.

He argues that the selected commissioners are likely to lose their independence to a certain political class or serve partisan vested interests.

The activist also alleges mischief in the delay to fill the vacancies, which occurred after Connie Nkatha (vice-chairperson) and members Paul Kurgat and Margaret Mwachanya resigned in April 2018.

They cited inability to continue working with chairman Wafula Chebukati, whom they accused of high-handedness.

Public service

In his interpretation, Mr Omtatah says the Public Service Commission is being used as the recruitment agency for the IEBC chair and commissioners.

He says the goal is for the polls body to have people whose primary allegiance is owed to the appointing authority, not the Constitution and the people of Kenya.

“There is, after all, a constitutional commission better suited to the task of being involved in the selection of the chair and commissioners of IEBC. This commission is the Public Service Commission, established under Article 233 of the Constitution,” says Mr Omtatah.

The petition indicates that the Public Service Commission is involved in the selection panels for recruitment of the chair and commissioners of other constitutional commissions and independent offices.

He cites bodies including the Commission on Administrative Justice, Kenya National Commission on Human Rights and the National Land Commission.

Under Section 1(6) of the First Schedule of the IEBC Act, 2011, the Parliamentary Service Commission is merely required to provide secretariat services and facilities required by the selection panel in the performance of its functions.

Mr Omtatah believes it is a gross conflict of interest and a breach of the Constitution for the Parliamentary Service Commission to nominate members of the selection panel and, at the same time, provide the secretariat services and facilities required by the selection panel.

The petition was certified as urgent and will be mentioned on Thursday for further directions.


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