The High Court has declined to issue orders suspending the ongoing recruitment of a new Independent Electoral and Boundaries Commission (IEBC) chairman and six commissioners to replace Wafula Chebukati and other commissioners pending the hearing of a lawsuit filed by Busia Senator Okiya Omtatah challenging the process.
Justice Thande Murange on Thursday, April 6, 2023, rejected an application by Omtatah to stop the hiring process and suspended all activities so far conducted by the seven-member Selection Panel of the recruitment of IEBC commissioners but instead directed the main petition to be heard on April 13, 2023
"I have considered submissions by parties this morning, I note this is a matter of great public interest and should be disposed of expeditiously. I decline to grant any orders at this stage. We shall proceed to the hearing of the main petition on April 13," Justice Thande directed.
Omtatah had urged the court to issue interim orders stopping the ongoing recruitment of the IEBC chairman and members claiming that the matter is urgent as it is challenging the procedure of enacting the IEBC (Amendment) Act No.1 of 2023 by the senators in January this year.
"So there should be conservatory orders to ensure we do not act in vain, there are live issues to be addressed. We are talking about a matter of procedure of enacting legislation which I have called to question," Omtatah informed the Judge.
"If this court does not intervene as prayed in the application, the Act will be implemented and the Chairperson and Members of the IEBC will be appointed under it, rendering both the application and the Petition nugatory given the peremptory, complex, onerous and lengthy process provided for under Article 251 of the Constitution for the removal of IEBC commissioners once appointed," Omtatah stated
The seven-member Selection Panel of the recruitment of IEBC commissioners through lawyer Mabrak Awadh Ahmed vehemently opposed the request by Omtatah to issue orders stopping it from continuing with the recruitment process of the top IEBC officials.
Ahmed urged Omtatah to drop the application where he is seeking for interim orders and allow the court to deal with the main petition since the Selection Panel has strict timelines to deliver on its mandate on the appointment of the IEBC commissioners.
The panel also sought to be allowed more time to file its pleadings opposing the entire lawsuit by the lawmaker.
Justice Thande allowed the request by the Panel to be granted more time to file their responses in the case until April 11.
Omtatah on IEBC (Amendment) Act
In the lawsuit, Omtatah wants the court to invalidate the IEBC (Amendment) Act No.1 of 2023, which paved way for changes in the composition of the selection panel that oversees the recruitment of the IEBC commissioners.
The activist is seeking a declaration that the Act is unconstitutional because senators disregarded the report of the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights at the time they passed the law in January.
He claims that the ongoing hiring of the IEBC commissioners is illegal as the process is premised on the law that is entirely invalid, null and void.
Omtatah argues that his constitutional rights and of other Kenyans will be gravely compromised and violated if Attorney General Justin Muturi, Senate Speaker Amason Kingi and the selection panel of the recruitment of IEBC commissioners which is chaired by Nelson Makanda are allowed to interview candidates in violation of the law.
He has sought orders barring the panel from nominating any persons or forwarding names of the successful nominees to the President for appointment as the Chairperson and members of the IEBC.
Further, the Senator also wants the court to issue orders restraining President William Ruto, his agents or anyone else whatsoever from appointing any person nominated by the Selection panel for appointment as the chairperson and members of the electoral body.
The Busia senator wants the ongoing reconstitution of the poll body stopped by the court saying the amendments of the repealed IEBC Act 2012 should be conducted afresh with the input of all political stakeholders.
The lawmaker stated that once the report on the bill was formulated by the Senate Justice and Legal Affairs Committee it was never debated saying it was approved without the concurrence of the House.
"The petitioner is aggrieved that the Act is an unconstitutional and, therefore, invalid and void law because the Senate passed the IEBC (Amendment) Bill, 2022 (National Assembly Bills No. 49 of 2022) without considering the report of the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights," reads the court papers.
"The IEBC (Amendment) Bill, 2022 (National Assembly Bills No.49 of 2022) was unconstitutionally and unlawfully passed in the Senate on January 19, 2023, when the Chairman of the Senate's Standing Committee on Justice, Legal Affairs and Human Rights was forced by the Executive to and he unilaterally ambushed the Committee members and the House when withdrawing the Committee's Report which he had tabled on behalf of the Committee, to avoid it being debated and subjected to a vote," Omtatah states in his court papers.
He says the Chairman of the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights tabled the report at a special sitting of the Senate on January 19 this year, during the morning session but the Senate Speaker Amason Kingi directed that it be debated and voted on at the afternoon session.
He says when the Senate resumed its sitting in the afternoon, the chairman, acting beyond his powers, ambushed the House, and unilaterally “withdrew” the report and the House proceeded to debate and pass the Bill in its original form without considering the report and the amendments recommended therein.
Senator Omtatah says he is a member of the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights and he avers that 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.
Omtatah argues that by withdrawing the report, which had recommended several amendments to the Bill, the Bill was passed without amendment.
He states that 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.
"In any event, Senate Standing Order No. 151 (2) requires the senate to “consider the Bill as reported from the Select Committee upon a Motion “That the report of the Select Committee on the… Bill, be approved”," he says
"There is no mechanism for the withdrawal of a committee report. Further, the report belongs to the committee as a collective and is not the private property of the Chair to be withdrawn by him on his whims without the consent of the Committee which prepared the report, and whose members appended their signatures to endorse. Hence, the withdrawal was against the law, and that voided the resultant Act of Parliament," Omtatah adds.
Further, Omtatah argues the Speaker of the Senate ought to have but failed to reject the purported withdrawal of the report since it was already the property of the House.
The activist has also expressed that the ongoing recruitment to fill the vacant slots within IEBC is not hinged on the law terming it an exercise in futility.
"The petitioner reasonably suspects that the impugned amendment was actuated by mischief and is intended to undermine the independence of IEBC," the court papers states
The Busia senator states that the constitution expressly requires all legislation to be enacted with public participation.
"Consequentially, since it is at the Committee stage that the Bill was subjected to public participation, the effect of the impugned “withdrawal” of the Report was that the Bill was passed in violation of the Constitution, the law, and the Senate’s Standing Orders, without subjecting it to public participation," Omtatah states in his court papers.