IEBC timelines: A ticking clock for Kenya to meet threshold to hold 2027 general elections

The IEBC is currently operating without all commissioners, relying solely on the secretariat to stay the course, doing the minimal they are legally allowed to do in the absence of the commissioners. 

To compound matters, on May 20, 2025, the High Court temporarily stopped the vetting process for all the commission nominees, whose names had been approved by President William Ruto. The court injunction temporarily stopped the vetting by the Justice and Legal Affairs Committee (JLAC) of parliament which was to kick off on May 26.

Justice Lawrence Mugambi of the Constitutional Division in Milimani, Nairobi, issued the order in response to a legal challenge that alleged procedural violations in their selection. The ruling is set to be delivered on May 29.  

The vetting of the nominees for Chairperson and six Commissioners of the IEBC now hangs in the balance after the High Court suspended the process. 

The nominated IEBC commissioners awaiting clearance are Erastus Ethekon, nominated as Chairperson, and the six Commissioner nominees Ann Nderitu, Moses Mukhwana, Mary Sorobit, Hassan Noor Hassan, Francis Aduol, and Fahima Abdallah.

IEBC time barred in readiness for 2027 polls

As it stands today, since the tenure of last IEBC commissioners lapsed in January 2023, every core mandate and policy direction at the agency froze. Unfortunately, time did not freeze and this has literally put some of its responsibilities in jeopardy. 

Despite the demise of several elective seat holders since 2023, by-election have not taken place, thereby placing the affected constituents in limbo. 

The deadline for the important delimitation of boundaries also lapsed, unfulfilled. Kenyans may have to live with the injustice of lacking fair and equitable representation at all levels. 

Election Management Bodies (EMBs) such as the IEBC, deploy various new technologies with the aim of improving efficiency and effectiveness of the electoral process. 

Kenya′s Election Act 2011 allows the Electoral Commission "to use such technology as it considers appropriate in the electoral process". 

Meanwhile, key technology-based interventions employed during elections such as the Kenya Integrated Election Management System (KIEMS) kits and the Biometric Voter Registration System (BVRS) kits have to be replaced to incorporate the latest technologies, with the commission coming in late, will it be possible to procure the best deal within a limited time space? 

A commission sworn in with limited time before elections will most certainly suffer a poor induction and a poorer timeframe to undertake stakeholder engagement and electoral advocacy. 

The Elections Act No. 24 of 2011, mandates the IEBC in Sections 6, 6A, 8 and 8A to undertake an inspection of register of voters, verification of biometric data, updating of the register of voters and auditing of the register of voters. 

None of these anticipated activities have taken place since the last general election and this remains an indication of probable intense dispute come the general elections of 2027.

Let it not be lost on all that the handiwork of IEBC is normally tried and tested by the judiciary after every general election.

27 constituencies risk being distinct

The immediate-past Kenyatta International Conference Center (KICC) board chairman, Irungu Nyakera, recently gave a warning that 27 constituencies could end up scrapped if the review process is not undertaken. 

Speaking on  April 27, Nyakera warned that “if the issue is not resolved soon, some constituencies might legally cease to exist and this would mean no members of parliament for the regions in the 2027 general elections.”  

He went on, “to avert an impending crisis, the IEBC should be immediately reconstituted and the NADCO legislative proposals enacted to either extend the timeline for boundary review or provide permanent protection for these constituencies. The Supreme Court should also give its advisory opinion and provide legal clarity.”

The 27 constituencies on the spotlight were created in 2010 under a special exception as they had not met the criteria of becoming a full constituency and therefore had to wait as they did not meet the required population threshold under Article 89(6) of the Constitution. 

The affected constituencies are constituencies at risk are Samburu North, Igembe North, Igembe Central, Igembe South, Kuria East, Kuria West, Teso North, Teso South, Turkana East, Turkana North, Bura, Galole, Lamu West, Lamu East, Mvita, Voi, Wundanyi, Mwatate, Mbeere North, Isiolo North, Isiolo South, Marakwet East, Keiyo North, Keiyo South, Samburu East, North Horr and Moyale.

IEBC mandate to review boundaries 

The year 2024 marked the 12th year threshold that constitutionally compelled the IEBC to have carried out Kenya’s delimitation process. 

Article 89(2) empowers the IEBC to review the boundaries and names of the electoral areas within the whole country within this specified time-frame. 

The Constitution under Article 89(6) states that the number of inhabitants of a constituency or ward may be greater or less than the population quota by a margin of not more than forty per cent for cities and sparsely populated areas and thirty per cent for the other areas. 

In the 2012 scenario, the Constitution only allowed these constituencies to exist temporarily, and the law therefore required the Independent Electoral and Boundaries Commission (IEBC) to carry out a boundary review by March 2024.

However, in line with the prevailing uncertainties and dilemma, the IEBC secretariat moved to the Supreme Court in February 2024. 

The Hussein Marjan-led team asked the court for guidance on whether they could do the review without commissioners and outside the set timeline. The apex court's is yet to issue direction on the same.

To ensure fair representation, and boundary delimitation of constituencies, the architects of Kenya’s constitution saw it fit to achieve the goal of equity in representation. 

They devised a process for equitable representation based size of area as well as the population resident therein. Other factors of importance were urbanization, community ties, and the specific geography of the area. 

Therefore, deliberate intervals of review of electoral boundaries are necessary to achieve fair representation despite population changes. 

The burden legal injunctions 

Legal injunctions pose a significant risk to the preparation of general elections; seen in the absence of commissioners at IEBC, which might impede many important policy decisions. 

This is not to say that the courts are meddling, far from it. The judiciary, we presume, are playing a critical role in ensuring that not only is electoral law vigorously applied but that the electoral process is fair to all especially the electorate. 

IEBC secretariat has for long suffered a crisis of integrity and objectivity, and to compound its present misery; a lack of policy directions. 

There is one factor sticking out like a sore thumb, it might make the incoming commissioners’ life at the IEBC utterly demanding, in light of readiness for the 2027 plebiscite, the boundaries review process in the country; it fell due by April 2024 and remains undone to date. Will the Supreme Court save the day for the agency? Will Kenyans find justice?

Constituencies and Counties already negatively impacted as by-elections are shelved and regions remain in the cold over years

The lack of IEBC commissioners is also having the unintended consequence of leaving sections of Kenyans without representation beyond the foreseen period. 

The Constitution states explicitly that whenever a vacancy occurs in the office of a member of the National Assembly under Article 97 (1) (c), or of the Senate under Article 98 (1) (b), (c) or (d), the respective Speaker shall, within twenty-one days of the occurrence of the vacancy, give notice in writing of the vacancy to the IEBC and the political party on whose party list the member was elected or nominated. 

Once this is done, a by-election shall be held within ninety days of the occurrence of the vacancy. In the case of demise of a county assembly member, Article 194(1) of the Constitution states that the office of a County Assembly member becomes vacant.  

Once a vacancy is declared, the Independent Electoral and Boundaries Commission (IEBC) is responsible for organizing and conducting the by-election to fill the vacant seat, according to the County Governments Act, 2012.  

In all the declared vacancies within parliament as well county assemblies, since all the IEBC commissioners left under different circumstances, Kenyans who have lost local or national representatives have suffered unjustifiable disadvantage as no by-election has been conducted in Kenya since the general elections of 2022.  

Restructuring and reconstitution of IEBC

When there was a truce between the opposition and the Kenya Kwanza government over a number of thorny issues facing the country, one of these issues was the process and choice of the IEBC selection panel who ultimately recruited the IEBC commissioners. 

Therefore, the National Dialogue Committee Report (NADCO) recommended the establishment of an expanded selection panel from the current 7-member to a 9-member selection panel. 

This National Dialogue Committee Report (NADCO) recommendations that were agreed upon by the ruling party and the opposition after taking views from experts, political parties, trade unions, civil society and members of the public. On 13th February, a selection panel of the IEBC commissioners was inaugurated by President William Ruto.

Will Parliament beat the deadline to have IEBC in place?

Parliament’s Justice and Legal Affairs Committee (JLAC) Chairperson George Murugara said the committee was prepared to proceed with the vetting but will now abide by the court’s directive and await a decision expected soon from the High Court. 

Murugara added, “There is a 28-day deadline for us to have IEBC commissioners in place, which expires at the end of this month. Parliament will either need to amend the relevant statutes to extend the deadline or await a ruling by the courts, which have inherent powers to do so. Otherwise, we were fully ready to conduct the vetting.” 

Even as the fight delaying the clearance for the IEBC is on at the courts, a parallel dispute is brewing in the Senate, where several senators have demanded to be included in the vetting process, arguing that the responsibility is too consequential to be left solely to their counterparts in the National Assembly. 

In a heated session last week, Senators insisted that the reconstitution of the IEBC is a matter of national significance that affects both tiers of government, and thus requires the involvement of both Houses of Parliament. Who will adjudicate this fight and ensure the public is the winner?

Distress of appointing commissioners too close to election

A close observation of the recent past, unveils a pattern where the State, either by design or default, has got into the uncomfortable habit of appointing IEBC commissioners too close to elections, which carries with it the risk of dubious induction, lackluster grip of the work at hand, poor preparation and poor execution of the elections. 

The immediate former IEBC chairman Wafula Chebukati, and fellow commissioners were appointed shortly before the 2017 elections. This is because their selection took place in late 2016. 

When the period of service lapsed for four of the commissioners, it again took too much tugging and haggling by the political players before the commission got another four new commissioners, variously known as the Cherera-four or the opposition commissioners. 

Appointed in August 2021, they were forced to resign by the Kenya Kwanza government for refusing ratify the results of the last general election, in August 2022, which was supported by three commissioners of the seven commissioners.

Systemic challenges in Kenya’s electoral management 

The ongoing attempts at reconstituting the Independent Electoral and Boundaries Commission (IEBC) is a harbinger of hope in Kenyans quest to have a trusted and competent agency to steer the approaching general elections in 2027. 

However, Kenya’s electoral management remains fraught with systemic challenges, undermining public trust in election outcomes for a long time but with more pointed public tumult over the past 15 years.

It is a fact that planning and preparations for the next general elections should take off immediately after the conclusion of the immediate past one. To have in place an independent, respected, and competent commission demands a fully-fledged agency whose work speaks of integrity, justice and equity, and is not parochial nor biased. 

To serve as a commissioner at the IEBC, one needs to have unquestionable integrity, competence and a heart of public service to ensure the body gets in return ethical and strategic leadership to achieve competently managed elections or referendums at any point in time. 

Therefore, it is in the best interest of all Kenyans to ensure that the IEBC is properly constituted with commissioners who can provide strategic leadership for a smooth implementation of their mandate.

This could not have been better captured as when Supreme Court Judge Isaac Lenaola, speaking on December 6, 2024, put the Executive and Parliament to task for laxity in reconstituting the IEBC and instead prioritizing political legislation at the expense of laws that affect the citizens directly. 

Justice Lenaola called out the government for its blatant failure’s among them, the country's current state without IEBC commissioners, almost two years since the last occupants left office.

“Why don’t we use social media to impact legislation? For instance, why don’t we have a hashtag, #AppointIEBCNow, and spread it?" Justice Lenaola posed. The onus is on all Kenyans going forward…