Court clears IEBC nominee vetting but halts swearing-In

The High Court has given the green light for Parliament to vet President William Ruto’s nominees to the Independent Electoral and Boundaries Commission (IEBC), but has placed a temporary hold on their official appointment and swearing-in.

Justice Lawrence Mugambi issued a conservatory order barring the seven individuals, among them Chairperson nominee Erastus Edung Ethekon, from taking the oath of office or assuming their roles until a constitutional petition filed by voters Kelvin Omondi and Boniface Mwangi is fully heard and determined.

“Pending the hearing and conclusion of this petition, a conservatory order is hereby granted to stop the swearing-in or assumption of duties by the interested parties Erastus Edung Ethekon, Anne Njeri Nderitu, Moses Alutalala Mukhwana, Mary Karen Sorobit, Hassan Noor Hassan, Francis Odhiambo Aduol, Fahima Arafat Abdallah, or any other person nominated as chair or commissioner of the IEBC,” the judge ruled.

Justice Mugambi stressed that while Parliament holds the constitutional authority to vet nominees, this power does not eclipse the judiciary’s role in scrutinizing the legality and constitutionality of the nomination process.

He directed that although the vetting process may go on, subsequent actions, including gazettement and swearing-in, must be put on hold until the court concludes its hearing and delivers a verdict on the petition.

“To avoid any confusion, the vetting and approval by the National Assembly may continue, but the gazettement and swearing-in of the seven nominees must not take place,” Justice Mugambi clarified.

The petitioners have raised concerns over the nomination process, alleging procedural flaws, lack of transparency, and breaches of constitutional standards.

Represented by lawyers Paul Muite and Ochieng Odinga, the petitioners contended that the selection process failed to uphold transparency and did not involve adequate public participation, thereby breaching multiple constitutional requirements.

Muite argued that the nominations were riddled with irregularities and fell short of key constitutional standards, including merit-based appointments, fair regional and ethnic representation, and the inclusion of persons with disabilities.

Muite singled out the inclusion of Hassan Noor in the final list of nominees, pointing out that his name was absent from both the initial shortlist and the publicly advertised list of applicants.

“We are raising concerns about the fifth Commissioner, Hassan Noor, who was neither shortlisted during the initial process nor included in the advertised list by the selection panel,” Muite explained.

“He was not advertised or shortlisted—his name was quietly inserted. What signal does this kind of sneaking send to the Kenyan voters?” he questioned.

Muite urged the court to grant interim orders, warning that permitting Parliament to continue with the vetting process could make the petition irrelevant.

In a thorough ruling, Justice Mugambi emphasized that the judiciary is obligated to step in whenever a credible constitutional issue arises, even if no direct harm has yet occurred:

“This court holds that judicial intervention is necessary whenever there is a credible threat to the Constitution. The petitioners have highlighted violations that require the court’s scrutiny, and these must be resolved before the process can move forward,” Justice Mugambi stated.

Justice Mugambi dismissed preliminary objections from the Attorney General and the National Assembly, who had sought to have the case struck out, arguing that the petition was premature, speculative, and violated principles such as separation of powers, ripeness, and exhaustion of remedies.

He reaffirmed the High Court’s constitutional authority to intervene at any stage of a public appointment process when credible claims of constitutional breaches are presented. He underscored that:

“Unconstitutional decisions cannot be protected from judicial review merely because the decision-making body no longer exists or because the process is ongoing.”

The judge referred the case to Chief Justice Martha Koome for the formation of a constitutional bench, highlighting that the petition raises significant legal questions that require consideration by multiple judges.

“This case strikes at the very heart of our constitutional democracy. In my view, the issues presented raise substantial questions of law concerning the sovereignty of the people. I find that this petition meets the criteria set out in Article 165(4) of the Constitution,” he concluded.