The reconstitution of the electoral body suffered another blow on Friday after the High Court quashed changes to the law.

A case filed by Busia Senator Okiya Omtatah, and supported by 13 opposition Senators, has rocked the Independent Electoral and Boundaries Commission (IEBC).

The High Court declared that last year’s amendments to the IEBC Act were unconstitutional. 

As a result, the appointment of the seven-member selection panel and subsequent inclusion of the opposition members to the panel through the National Dialogue Committee (Nadco) is now null and void.

Unless the Court of Appeal intervenes, both the government and the opposition will have to go back to the drawing board and use the law as it was before the 2023 amendments to constitute a new body. 

If Kenyans must wait for MPs to amend the law again, then both houses of Parliament will need to consider fresh amendments before a new team is constituted.

This comes as time runs out to prepare for the next General Election, with the IEBC failing to meet the deadline for reviewing constituency boundaries.

In his verdict, Justice Lawrence Mugambi said that the Senate had not been forthcoming about what transpired regarding a report that raised pertinent issues about the selection of the panel to recruit the commissioners. 

According to Justice Mugambi, the withdrawal of the Senate Standing Committee on Justice, Legal Affairs, and Human Rights report from the House floor meant that public views were trashed without consideration.

“The respondents have not been transparent about what happened to the public views that were gathered and which informed the Senate Committee’s report, leading to recommendations for amendments after the report was withdrawn without debate,” said Justice Mugambi. 

He pointed out that although the National Assembly claimed that it had conducted public participation, this did not absolve the Upper House from scrutiny for failing to do the same.

“In the circumstances, I find that the processing of the Bill in the Senate violated Articles 118 (1) (b) and 10(2) (a) of the Constitution hence the ensuing Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023 is unconstitutional null and void,” he ruled.

Omtatah, in his case, argued that the IEBC selection panel was appointed using an illegally passed law. He claimed the Senate irregularly passed the law without considering the views, opinions, and report of the committee. 

The Act established a seven-member IEBC selection panel made up of two persons from the Parliamentary Service Commission, one nominated by the Public Service Commission, Political Parties Liaison Committee and the Law Society of Kenya, and two nominated by religious organisations.

After the law came into force, President William Ruto appointed Bethuel Sugut, Euralia Atieno, Charity Kisotu, Evans Misati, Benson Ngugi, Nelson Makanda, and Fatuma Saman to the Selection Panel on February 27, 2023.By Kamau Muthoni, The Standard