Independent Electoral and Boundaries Commission

 

 

Open. Accountable. Responsible

 

Contents
Introduction

 Authority

The IEBC is the sole body with the authority to conduct, plan for, and supervise elections, as well as to delineate electoral boundaries.

Roles and Functions

The IEBC is therefore concerned with implementing legislation governing the planning and conduct of elections, and drawing up boundaries and carrying civic education on elections, and supervising political parties and candidates.

Composition

The Commission is lead by a Chair, and by election supervisors at the Regions (Counties).

 

 

Introduction

 

 IEBC logo

As part of its recommendations towards electoral reforms in Kenya, the Kriegler Commission that was formed to examine the entire electoral process following the disputed General Elections of 2007, suggested in 2008 that going forward, there be established a boundaries review commission to be in-charge of delimitation of electoral boundaries, and a separate electoral commission to plan for and supervise elections. In 2010 Kenya voted for a New Constitution that provides for a combined electoral and boundaries commission, the IEBC, as a successor commission to the stop-gap Interim Independent Electoral Commission IIEC which had been established in 2008 following the dissolution of the Electoral Commission of Kenya, ECK. Excerpts from the Sixth Schedule, Part 6 - Commissions and Offices:

28. (1) The Interim Independent Electoral Commission established under section 41 of the former Constitution shall continue in office in terms of the former Constitution for its unexpired term or until the Independent Electoral and Boundaries Commission established under this Constitution is established, whichever is later.

ECK was the body that had supervised the disputed 2007 elections. IIEC was a transitional commission although it is credited with much of the delineation work that created the current electoral Ward and Constituency boundaries.

 

Authority

 

The IEBC is a constitutional commission created by the Constitution of Kenya, 2010 as an independent authority to conduct elections. Excerpt from Chapter 15 - Commissions and Independent Offices:

248. (2) The commissions are— (c) the Independent Electoral and Boundaries Commission;

Excerpts from Chapter 7 - Representation of the People, Part 2 - Independent Electoral and Boundaries Commission and Delimitation of Electoral Units:

88. (1) There is established the Independent Electoral and Boundaries Commission.
(4) The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament .......

The IEBC's very existence is to meet the stated objective and desire of the people of Kenya for a credible electoral system and process. Chapter 7, Part 1 - Electoral System and Process:

81. The electoral system shall comply with the following principles–– (e) (iii) conducted by an independent body;

As a gatekeeper to the electoral process, the IEBC is responsible for laying the ground rules that must be followed by all the players in the electoral process; to ensure that they conform to the law and to democratic principals: 

84. In every election, all candidates and all political parties shall comply with the code of conduct prescribed by the Independent Electoral and Boundaries Commission.

88. (4) The Commission is responsible for ...... (d) the regulation of the process by which parties nominate candidates for elections; (e) the settlement of electoral disputes, including disputes relating to or arising from nominations ...... (i) the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election; (j) the development of a code of conduct for candidates and parties contesting elections; and (k) the monitoring of compliance with the legislation ...... relating to nomination of candidates by parties.

In July 2013, the Commission's Nomination Dispute Resolution Committee NDRC, ably applied the provisions of Clause (e) above when it barred a nominee of the Wiper Democratic Movement (WDM) political party from contesting in the Makueni County by-elections for Senator, after ruling that she was not duly registered as a voter.

Although this ruling was upheld by the High Court upon appeal, the Court granted the political party an opportunity to replace the disqualified candidate - a decision that confounded most commentators who felt that this could not possibly be fair since the nomination date for candidates had long expired.

The Court found that the party WDM, was not aware its nominee was unregistered, and hence it would be an injustice to exclude it from participating in the elections. Nevertheless, the IEBC was able to send a clear message to the political parties and their owners that it will no longer be business as usual whereby they ignored, flouted and acted with impunity, with regard to the electoral code of conduct as laid down by the Commission, as well as applicable laws.

On the 27th of September 2013, however, the shoe was on the other foot when an Electoral Court sitting in Nairobi found the IEBC guilty of flouting Clause 88. (4) (k) above read with Clause 98. (2) (b) when it nominated two Senators from the party lists of two political parties to represent Persons with Disability.

The Court accused the electoral body of having substituted the names of the nominees higher up the respective lists with names from lower down the lists and thereby revoked the nominations and instead ruled that the substituted names are those of the validly nominated Senators. 

The judgement was upheld by the Court of Appeal a few months later on the 20th of December 2013.

 


 

 

Roles and Functions

 

As a commission under the New Constitution, the roles and functions of the IEBC emanate from its mandate to: (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism (249. (1). This means the IEBC is created to ensure (and assure) that the systems and processes of representation in Kenya are and remain democratic in line with the eight wishes of the people of Kenya concerning politics and the electoral process. These wishes, nay demands, are listed in Chapter 7 - Representation of the People, Part 1 - Electoral System and Process, Article 81, excerpts:

81. The electoral system shall comply with the following principles–– (a) freedom of citizens to exercise their political rights under Article 38; (b) not more than two-thirds of the members of elective public bodies shall be of the same gender; (c) fair representation of persons with disabilities; (d) universal suffrage based on the aspiration for fair representation and equality of vote; and (e) free and fair elections, which are— (i) by secret ballot; (ii) free from violence, intimidation, improper influence or corruption; (iii) conducted by an independent body; (iv) transparent; and (v) administered in an impartial, neutral, efficient, accurate and accountable manner.

The IEBC is expected to take Kenya to the 'Canaan' of a perfected electoral system and process. These eight fundamental wishes of our Constitution in Article 81 above, echo Article 21 of the Universal Declaration of Human Rights, that: “(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. ....... (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” (Article 21 of the Universal Declaration of Human Rights).

The IEBC is a Constitutional Commission that combines two independent functions: delimitation and elections. Let us first look at its role and function in delimitation:

82. (1) ....... (a) the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the National Assembly and county assemblies;

88. (4) The Commission is responsible ....... for- (c) the delimitation of constituencies and wards;

89. (2) The Independent Electoral and Boundaries Commission shall review the names and boundaries of constituencies ....... but any review shall be completed at least twelve months before a general election of members of Parliament.
(3)The Commission shall review the number, names and boundaries of wards periodically.

Secondly, the IEBC is the body expected to design and manage any and every electoral system and process used in Kenya:

90. (2) The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections ........

88. (4) The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for— (a) the continuous registration of citizens as voters; (b) the regular revision of the voters’ roll; (f) the registration of candidates for election; (g) voter education; (h) the facilitation of the observation, monitoring and evaluation of elections;

It may interest the reader to note that a significant proportion of IEBC's budget is spent on the very important process of voter education.

Besides its traditional responsibility of the conduct of elections and referendums, the IEBC will also be in-charge of those national referendums called as part of legislative processes seeking to amend specific sections of the Constitution. Chapter 16 - Amendment to this Constitution, Article 256, excerpts:

256. (5) ..... a Bill to amend this Constitution ........ the Independent Electoral and Boundaries Commission ......... conduct, ....... a national referendum ........ the President shall assent to the Bill .........

The IEBC is also responsible for verifying that a popular initiative seeking to amend any part of the Constitution is in proper order, and thereupon to forward it to all county assemblies for consideration. If such a draft Bill (created by a popular initiative) is passed by a majority of County Assemblies but fails to pass in either House of Parliament thereafter, the IEBC must subject it to a referendum (Article 257, summarised).

 

 


 

 

Composition

 

ahmed issack hassan from iebc.or.ke

Ahmed Issack Hassan, Chairperson of the Independent Electoral and Boundaries Commission, IEBC.

 

A common accusation directed at the defunct Electoral Commission of Kenya ECK, was that it its commissioners lacked independence. To ensure the independence of the IEBC and its top leadership, the New Constitution has spelled out the factors that disqualify one from serving as a commissioner. Excerpts from Article 88:

88. (2) A person is not eligible for appointment as a member of the Commission if the person— (a) has, at any time within the preceding five years, held office, or stood for election as— (i) a member of Parliament or of a county assembly; or (ii) a member of the governing body of a political party; or (b) holds any State office. 
(3) A member of the Commission shall not hold another public office.

The Commission also has a special unit (formed through the Political Parties Act No 10 of 2007) led by a Registrar of Political Parties RPP, that regulates parties and candidates. This office was equally visible as its parent Commission, as the country prepared for general elections in March of 2013. The Act required the fresh registration and the publishing of audited accounts, by all political parties, among a raft of new laws.

7.(1) The members of the Commission shall be appointed for a single term of six years and shall not be eligible for re-appointment. (IEBC Act, 2011). This means that the current Commissioners who were appointed in November 2011, will conduct the next general elections expected in August 2017.

 


 

 

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.

2. Article 21 of the Universal Declaration of Human Rights. Retrieved May 2012.

3. Political Parties Act, 2011. National Council for Law Reporting. The Attorney General.

4. Independent Electoral and Boundaries Commission Act, 2011. National Council for Law Reporting. The Attorney-General.

5. Ben Njoroge & another v Independent Electoral Boundaries Commission (I.E.B.C) & 2 others [2013]eKLR. National Council for Law Reporting. The Attorney General.

6. Linet Kemunto Nyakeriga & another v Ben Njoroge & 2 others [2014] eKLR. National Council for Law Reporting. The Attorney General.

 

Find Us On FaceBook - Image

Follow me