The Independent Electoral and Boundaries Commission (IEBC), tasked with overseeing Kenya’s elections and ensuring democratic processes, has remained paralyzed since January 2023.

 The commission has been operating without commissioners for more than a year after the exit of its chairman, Wafula Chebukati, and six other commissioners.

This unprecedented vacancy has sparked a series of legal battles and political disputes, leaving the country’s electoral body in turmoil as crucial constitutional deadlines loom.

In January 2023, the term of IEBC chairman Wafula Chebukati, along with commissioners Abdi Guliye and Boya Molu, expired.

 Their departure left a significant leadership vacuum at the commission, as they had overseen the highly contested 2022 general elections. 

The commission was further destabilized by the resignation of the so-called “Cherera Four”  Vice-Chairperson Juliana Cherera, and commissioners Irene Masit, Justus Nyang’aya, and Francis Wanderi who left shortly after the elections due to disagreements over the results.

The resignation of these commissioners, combined with the failure to immediately replace them, triggered a constitutional crisis. 

The absence of a fully constituted IEBC has meant that the commission cannot carry out its statutory duties, including conducting by-elections and managing other electoral processes. 

This situation has led to calls from civil society, political leaders, and legal experts for urgent action to address the vacancies and restore the integrity of the electoral body.

Two weeks ago, the High Court intervened, ruling that the IEBC selection panel must immediately begin the process of filling the vacant chairperson and commissioner positions.

 Justice Thande Mugure, in her ruling, emphasized the urgency of the matter, warning that failure to act could lead to a constitutional crisis.

Although acknowledging the political sensitivity surrounding the appointments, Justice Thande made it clear that political considerations should not override the Constitution. 

“I respectfully reject the notion that the political question doctrine should override the very explicit constitutional provisions,” she stated

. “Failure to act immediately risks infringing on rights guaranteed by the Constitution and threatens the democratic process.”

The judge further asserted that the Constitution clearly stipulates the process for the establishment and composition of the IEBC, and political expediency should not delay compliance with these constitutional provisions.

The effects of the IEBC’s paralysis are already being felt in various parts of the country.

 The most urgent concern is the inability to hold by-elections for several vacant seats, including the Banissa constituency in Mandera County, where the MP passed away in 2023. 

Other constituencies, such as Magarini, Borabu, Fafi, West Mugirango, and Khwisero, also face similar issues due to the death of MPs or court rulings overturning election results.

In his affidavit to the court, IEBC CEO Marjan Marjan acknowledged that the commission had been unable to conduct by-elections due to the lack of commissioners. 

“Crucial operations at the electoral agency came to a standstill following the retirement of former chairman Wafula Chebukati and ex-commissioners Abdi Guliye and Boya Mulu,” Marjan said. 

“We sympathize with the people of Banissa constituency, who have a right to representation by a person of their choice in the national assembly.”

According to Marjan, the commission had also sought legal advice from the Attorney General’s office regarding the conduct of by-elections in the absence of commissioners. 

The legal opinion from Attorney General confirmed that no by-election could be held without the sanction of the commissioners.

 “In the absence of the commissioners, no gazette notices may be executed for publication to facilitate the conduct of any by-election, as the same would lack the sanction of the commission, thereby violating the Constitution,” AG stated.

Another looming concern was the scheduled review of constituency boundaries, which is required by the Constitution to be conducted no later than March 2024. 

Article 89 of the Constitution mandates that the IEBC review boundaries every 12 years. 

With the current deadline fast approaching, the absence of a fully constituted IEBC puts this process at risk. A delay in the boundary review has led to a constitutional crisis, particularly regarding the legitimacy of constituencies and the allocation of parliamentary seats.

The process to appoint new commissioners has been delayed for over a year, largely due to political disagreements between President William Ruto’s Kenya Kwanza coalition and the opposition Azimio La Umoja coalition. 

In February 2023, President Ruto appointed a seven-member selection panel tasked with nominating candidates for the vacant IEBC positions.

 However, the opposition raised concerns that the panel was partisan and could undermine the independence of the commission.

Raila Odinga, leader of the Azimio coalition, accused President Ruto of attempting to appoint partisan commissioners who would favor his administration. 

This led to calls for the reconstitution of the selection panel, which was ultimately agreed upon during the formation of the National Dialogue Committee (NADCO). Under the new agreement, the selection panel was expanded from seven members to nine, in an effort to ensure greater representation of diverse political interests and ethnic groups.

Despite the political wrangling and legal challenges, a breakthrough was achieved on January 24, 2025, when the High Court dismissed a petition that sought to block the appointment of the new selection panel. Justice Dola Chepkwony’s ruling allowed the names of the panel members to be submitted to President Ruto for appointment.

 This decision has paved the way for the recruitment of new commissioners to move forward.

The selection panel, led by Dr. Nelson Makanda and Vice-Chairperson Lindah Kiome, is now tasked with recruiting qualified candidates for the vacant positions of IEBC chairperson and commissioners.

Dr. Makanda, speaking on behalf of the panel, assured the public that the recruitment process would be conducted transparently and impartially. 

“We have undertaken to ensure that we deliver on our mandate of giving Kenyans the next chairperson and members of the Independent Electoral and Boundaries Commission,” he said.

The panel is expected to invite applications for the positions of chairperson and commissioners starting on February 1, 2025, and has pledged to conduct the recruitment process with the utmost fairness and adherence to the Constitution.

As the selection panel moves forward with the recruitment process, the stakes for Kenya’s electoral future remain high. 

With the 2027 general elections just a few years away, it is crucial that the IEBC is fully constituted and operational to ensure the credibility and transparency of the elections. 

In the coming weeks, the eyes of the nation will be on the selection panel as it begins its work, and the hope is that the process will bring an end to the paralysis at the IEBC and restore confidence in Kenya’s electoral system.