IEBC hits back over verdict barring it from referendum

Friday, May 21st, 2021 00:00 |
IEBC chairman Wafula Chebukati. Photo/File

Bernice Mbugua @BerniceMuhindi

The Independent Electoral and Boundaries Commission (IEBC) has filed a notice to appeal the High Court decision that nullified the Building Bridges Initiative (BBI) process.

In the notice, the electoral body states that, it will appeal the finding that the commission lacks requisite quorum for purposes of carrying out its constitutional and statutory mandate in relation to the intended referendum.

“Being dissatisfied with the judgement of the court, IEBC intends to appeal to the Court of Appeal against some parts of the decision,” reads the notice.

Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita on Thursday last week ruled that the entire Building Bridges Initiative (BBI) process was unconstitutional.

Properly constituted

The judges in a lengthy judgment faulted the IEBC, saying all the decisions it made, including verifying BBI signatures, were unconstitutional.

The judges said, the commission was not properly constituted because it lacked the requisite quorum of five commissioners to make any major policy decision

There are currently only two commissioners in office; Boya Molu and Abadi Guliye and chairman Chebukati following the resignation of their three colleagues in 2017 and one in 2018.

“The IEBC Act categorically places the quorum of IEBC for the purpose of conducting business at five commissioners. IEBC did not have this quorum at the time it made the decision related to the constitutional amendment Bill…All the decisions made by IEBC in relations to the proposed constitutional amendment Bill are therefore  invalid, null and void for lack of quorum,” ruled the judges.

IEBC through the law firm of G&A Advocates however says it will appeal the said findings.

Legal framework

Among other issues the commission intends to appeal is the finding that it ought to have carried out a separate nationwide voter registration exercise for the specific purpose of the intended referendum.

It will also appeal the finding that its role in relation to verification that the initiative is supported by at least one million registered voters and that Article 257(4) requires a special legal framework for verification of signatures and the process adopted was flawed.

The petition was filed by economist David Ndii and four other activists but it was later consolidated with seven other petitions. 

Attorney General (AG) Kihara Kariuki also intends to appeal the entire decision of the five high court judges.

Through Solicitor General Kennedy Ogeto, the AG filed the notice of appeal saying he was dissatisfied with the entire decision of the five-judge Bench judgement which declared the BBI process illegal.

The AG  had also filed an application at the High Court  seeking to stay the said judgment pending the hearing and determination of the appeal but withdrew it , a day after the High Court certified the matter as urgent and directed all  the  parties  file  and  serve   their  responses. 

In the notice of withdrawal, the AG stated that he was desirous of invoking the jurisdiction of the Court of Appeal to seek similar reliefs.

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