By Caleb Sadala
All sovereign power belongs to the People.[i] All state officers act as trustees of the people when exercising state power. [ii] How then did the Supreme Court of Kenya in the 2022 Presidential Election Petition declare that the Chairperson of the Independent Electoral and Boundaries Commission (IEBC) acts as a delegate of the Commission? Is he not an agent of the people, from whom he derives power? Does this finding put him at the mercy of the commissioners? Is the opposition right, when they claim that the chairperson acted arbitrarily, disregarding the finding of the four commissioners who thought the 2022 elections were opaque? Is the Chairperson a lord over the commissioners? Should he be a delegate of the people and not the Commission?
The Supreme Court decision settled the legal battle on whether the IEBC Chairperson is the agent of the Commission or of the people. [iii] When the question of tallying, verifying the count and declaration of the results ensued, the parties were divided. The respondents argued that the Chairperson has the sole mandate of declaring the election results. The applicants, on the other hand, argued that the declaration of the results is vested in the Commission, and the Chairperson declares it as an agent of the Commission.[iv] It is my hope, dear reader, that by the end of this article, you will understand why the Chairperson of IEBC declares presidential results as a delegate of the Commission.
IEBC is established under Article 88 of the Constitution.[v] It is an independent commission By dint of Article 248. The objects of the commissions referred to in Article 248 include; protecting the sovereignty of the people, securing observance of democratic values and principles by all state organs, and promoting constitutionalism.[vi] It is worth noting that these objectives are vested in the commissions and not the holders of these offices. It denotes that in achieving this, a commission acts as a whole. In addition, each commission and each independent office in the constitution is a body corporate.[vii] With the mandate of protecting the sovereignty of the people vested in the commission, the people entrust their power of conducting elections in the IEBC.
The Chairperson of the IEBC is the head of the Commission. He gets into office after the recommendation of the Judicial Service Commission (JSC), approval of the National Assembly, and appointment by the President.[viii] It can be safely argued that the Chairperson and the Commission work under the principle of collective responsibility. The members of the Commission are protected from personal liability. [ix] The Commission pays for the liability of its members in the course of duty as long they are done in good faith and the course of duty. The Chairperson, therefore, cannot claim to be acting on his own accord as an agent of the people, as the Commission is liable for whatever decision he undertakes. Decision-making is by a majority, and the minority is bound by whatever the majority of the Commission's members decide.[x] What then is the role of the Chairperson in declaring presidential election results?
Article 138 of the Constitution of Kenya 2010 outlines the procedure of presidential elections. In Article 138 (3) (c), the IEBC is mandated to verify, tally the count and declare the presidential election results. This denotes that the primary mandate of the Commission is declaring presidential election results. The chairperson must declare the results and submit a copy of the results to the Chief Justice.[xi] What then is the meaning of the word 'declare' in Article 138 of the Constitution of Kenya?
In the Maina Kiai case,[xii] the Court relied on the Black's Law Dictionary definition which defined declaration as '…a formal statement, a proclamation, or an announcement embodied in an instrument…' An election involves several stages of declaration. The first declaration happens at the polling station and ends with the issuance of Form 38 to the winner.[xiii] This entire process, leading to the final declaration is performed by the commission, through its staff.[xiv] Thus, the result declared at the final stage, is 'owned' by the Commission. For this reason, the Chairperson serves as an agent of the Commission.[xv]
Reading the provisions of Article 138, 10 (b) in isolation poses two problems.[xvi] First is that it can lead to arbitrariness as envisioned in the Maina Kiai case.[xvii] Second, making the chairperson an agent of the Commission 'blocks' a petitioner from challenging the decision in court. In a principal-agent relationship, the principal is responsible for the wrongful acts of its agent. In case we find the chairperson being an agent of the people, it would be impossible to bring presidential petitions before the courts, as the first defense of the Chairperson would be, the chairperson was acting as an agent of the people. It is, therefore, important to determine the role of the Chairperson through a holistic reading of the Constitutional Provisions that stipulate he is indeed an agent of the Commission.
With the obvious divide among the IEBC commissions, the courts might soon be flooded with cases to resolve. The divide among IEBC Commissioners is no news. In 2017, a commissioner resigned just before the election.[xviii]Immediately after the 2017 elections, three more commissioners resigned amid an election probe. [xix] In 2022, a repeat of the same happened, with 3 of the dissenting commissioners resigning. [xx] Irene Masit, the last of the four, fought a losing battle in an impeachment process chaired by Justice Aggrey Muchelule.[xxi] These battles may be a reflection of the reforms needed in the IEBC or may be a good way to develop our jurisprudence. Additionally, maybe these conflicts are a true representation of our right to expression and the autonomy of public officers. We are yet to know, whether these conflicts within the IEBC are the new normal.
[i] Constitution of Kenya (2010), Article 1(1).
[ii] Constitution of Kenya (2010), Article 1(3).
[iii] Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated) Judgment of the Supreme Court, 5 September 2022 [eKLR].
[iv] Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others.
[v]Constitution of Kenya (2010), Article 88.
[vi] Constitution of Kenya (2010), Article 249.
[vii] Constitution of Kenya (2010), Article250.
[viii] Constitution of Kenya (2010) Article 250.
[ix] Independent Electoral and Boundaries Commission Act No 9 of 2011, Revised 2020, Section 15.
[x], Independent Electoral and Boundaries Commission Act No 9 of 2011, Revised 2020, Schedule 2, Section 7.
[xi] Constitution of Kenya (2010), Article 138 (10) (b).
[xii] Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others, Judgment of the Court, 23 June 2017, [eKLR].
[xiii] Capacity of the chairperson of the IEBC to confirm, vary or verify the results of a Presidential Election, Weekly Newsletter, Ribia John, eKLR.
[xiv]Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others, Para 48.
[xv]Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others, Para 24.
[xvi] Role of IEBC Chair and Commissioners: What Is in the Name "Returning Officer"?, Ian Mwiti Mathenge, August 30 2022 - https://www.theelephant.info/op-eds/2022/08/30/role-of-iebc-chair-and-commissioners-what-is-in-the-name-returning-officer/- accessed 8 March 2023.
[xvii]Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others.
[xviii] Role of IEBC Chair and Commissioners: What Is in the Name "Returning Officer"?, Ian Mwiti Mathenge, August 30 2022 - https://www.theelephant.info/op-eds/2022/08/30/role-of-iebc-chair-and-commissioners-what-is-in-the-name-returning-officer/- accessed 8 March 2023
[xix] Kenyan officials resign amid electoral probe, April 16, 2018 - https://www.dw.com/en/kenyan-electoral-officials-resign-amid-commission-crisis/a-43413211 -accessed 8 March 2023.
[xx] Cherera resigns as vice chair of electoral agency, Jacob Ngetich, The Standard, - https://www.standardmedia.co.ke/national/article/2001462525/cherera-resigns-as-vice-chair-of-electoral-agency-accessed 8 March 2023
[xxi] Tribunal recommends removal of IEBC commissioner Irene Masit, Stephanie Wangari, Feb 27 The Standard - https://www.standardmedia.co.ke/health/national/article/2001467976/tribunal-recommends-removal-of-iebc-commissioner-irene-masit-8 March 2023.
