In the coming days, or weeks, the mere magnitude of yesterday’s ruling on the country at large, and on some institutions in particular, will begin to come out slowly by slowly.
The Court’s finding that the Independent Electoral and Boundaries Commission isn’t properly constituted to carry out its constitutionally mandated duties is likely to result in aggrieved parties going to court to seek a reversal of results or even decisions that might have been reached at by the body, or under the body’s supervision.
This situation is likely to be compounded by the fact that alongside the genuine petitioners, disgruntled parties, unsatisfied with past decisions or outcomes, may also join the fray, in a effort to reverse past decisions they may have disagreed with.
In 2017, Roselyn Akombe spectacularly left the IEBC, with claims that of improprieties which shocked the whole country.
Later on, Commissioner, and Wafula Chebukati’s deputy, Consolata Nkatha, led two other commissioners in leaving the body. This left the institution with just 3 commissioners.
Although the issue of whether the IEBC, as constituted, is able to conduct by-elections, is an issue that was already ruled on in a 2018 case presided over by Judge Wilfrida Okwany, this latest ruling is likely to complicate matters, with litigants seeking specifications on what exactly can the IEBC do, and what can’t it do.
In the High Court sitting in Nairobi, it was found that the mere fact that some commissioners resigned does not invalidate the composition of the commission.
“All that the reduction of numbers does is to limit the operations of the commission, especially in respect to raising the quorum required for meetings,” said Okwany.
She said lack of quorum cannot lead to a declaration that the commission is improperly constituted as the lack of it will only be the subject of a challenge if policy decisions of IEBC are made without the requisite numbers.
“As I have already found in this judgement, the issue of the alleged resignation of the four commissioners was a matter that was neither here nor there and was not proved by any tangible evidence,” said Okwany.