President William Ruto on Tuesday ignored a court order and appointed new Independent Electoral and Boundaries Commission (IEBC) commissioners.
Against an order by High Court Judge Lawrence Mugambi that directed against the appointment, Ruto gazetted Erastus Ethekon as the commission’s chair and Ann Nderitu, Alutalala Mukhwana, Mary Sorobit, Hassan Noor, Francis Aduol and Fahima Abdallah as commissioners.
“Pending the hearing and determination of this petition, a conservatory order is hereby issued forbidding the gazettement, taking of oath, or assumption of office by the interested parties,” Mugambi ruled last month in a case filed by activists Boniface Mwangi and Kelvin Roy Omondi.
Mugambi did not stop the vetting of the seven by Parliament, a critical process in the recruitment of electoral commissioners.
The case’s hearing is scheduled for June 23. Chief Justice Martha Koome ordered it expedited owing to its national importance.
With the names published in the Kenya Gazette, the only thing standing in the way of the recruitment of the new electoral commission is their swearing into office.
All eyes were on Koome, with many keen to see whether she would follow Ruto into ignoring a court order.
“Let us see how CJ Martha Koome will handle this one,” lawyer Nelson Havi posted on his social media handles. Havi told The Standard that the seven IEBC officials “stand appointed” following the President’s gazette notice.
“The operating instrument announcing the appointment of a state or public officer is a gazette notice,” said Havi, who argued that Mugambi’s order was “null and void ab initio and incapable of effecting” and that Ruto acted in public interest by announcing the appointments.
“There is a unanimity of thought that the constitution of the IEBC has been frustrated by the courts, which have failed to expedite the constitutional process, which has stagnated for two years. Can that be in the public interest? No,” argued the former Law Society of Kenya president.
“The courts have themselves said that the constitutional process can’t be halted by courts. Nominees were vetted by Parliament, and the consequence of that process is that the President appoints them and they are sworn into office.”
But constitutional lawyer Bobby Mkangi differed, terming Ruto’s move a “waste of time.”
“Why would the President engage in a nullity? It needs no rocket science for a lawyer to interpret the gazette notice as a nullity,” said Mkangi. “What this shows is that the habit of disregarding court orders, which reflects the disrespect of law, continues. Mambo ni yale yale (Things are the same), which is sad because this regime campaigned on the platform of safeguarding the rule of law.”
Mkangi further argued that by making the appointments, Ruto violated his oath of office as he went against his promise to uphold constitutional dictates.
Joshua Malidzo Nyawa, a constitutional and human rights lawyer, also said the President’s action was “null and void.”
“The gazettment of IEBC commissioners by Ruto is illegal and in violation of the principle of the rule of law. The court issued conservatory orders forbidding the gazettment of the commissioners,” said Nyawa.
Koome had not sworn in the new IEBC team by yesterday. She has not spoken about Ruto’s action, which is likely to invite legal challenges and lengthening of the already protracted process.
The country has been without an electoral commission since Irene Masit’s removal in March 2023 following the recommendation by a tribunal that investigated her conduct in the previous year’s election.
By Brian Otieno
