BY SAM ALFAN.
An activist has challenged the constitutionality of the amendment of IEBC Act, which provides for members of the selection panel that will oversee the nomination of the chairperson and commissioners of the electoral body.
In a case certified as urgent by High Court Judge Anthony Mrima, activist Okiya Omtatah challenges the constitutional validity of the Independent Electoral and Boundaries Commission (Amendment) Act of 2020.
He wants the court to issue orders suspending the operationalization of Act, pending the determination of the case. The activist further wants the court to block President Uhuru Kenyatta from appointing members to the selection panel.
Omtatah wants an injunction restraining Parliamentary Service Commission (PSC), Law Society of Kenya (LSK) and The Inter-Religious Council of Kenya from nominating members to the selection panel and forwarding the names to President Kenyatta.
“A conservatory order be issued staying or suspending the coming into force or the implementation and operationalization of section 2 and 3 of the Independent Electoral and Boundaries Commission (Amendment) Act No. 18 of 2020 pending hearing and determination of the case,” he urged the court.
Omtatah told the court the petition was urgent and need to be heard urgently, failure to which it will be overtaken by event since the amendment Act comes into force on November 13, 2020.
Justice Mrima fixed it for hearing on Thursday November 12, 2020. The new Act amends the first schedule to the IEBC Act of 2011.
Section 2 of the Amendment Act provides that the selection panel be constituted of seven members instead of “such persons as parliament shall determine” as provided in the original Act, while section 3 of the Act effectively reposes in the PSC the administrative aspects relating to the selection panel.
“Giving control of the process to the selecting the chairperson and commissioner of IEBC as well as the control or critical aspects of the administration of the processes of the selection panel to the PSC under sections 2(2)(a) and 3 of the Amendment Act is unconstitutional,” he said
The activist added that the amendment is against the principle of separation of powers and effectively constitutes usurpation of powers by Parliament in that the legislative is given control over the selection, approval, oversight and removal of IEBC commissioners.
He further told the court that the Amendment Act undermines or has the effect of undermining the independence which the constitution grants the IEBC and it is against the principle of the rule of law in that neither the constitution nor the PSC Act grants the PSC or Parliament the power to control IEBC’s selection process.
He accused Parliament of using its legislative power to assign itself a role expressly given to it or contemplated to be within its province by the constitution and directly undermines the principles of separation of powers of checks and balances, abused its and abused its power and failed to observe the constitutional principles of good governance.
Omtatah faulted Parliament of hogging spaces in the IEBC selection panel (4 out of 7 position) failed to observe Article ten principles of equity, equality, inclusiveness and non-discrimination that results to the unconstitutional action of parliament in conceptualizing, debating and passing the IEBC Act.
