, NAIROBI, Kenya, Jan 8 – The Independent and Electoral and Boundaries Commission says it is considering the Ombudsman’s recommendation for early retirement in order to avert a constitutional crisis should there be a run-off in the next General Election.
IEBC vice-chairperson Lilian Mahiri-Zaja told Capital FM News that the commissioners would meet and take a substantive position next week.
The Commission on Administration of Justice Chairperson, Otiende Amollo, has recommended that the commissioners set to retire in November next year should follow Chief Justice Willy Mutunga’s lead and have the process of selecting their successors commence immediately.
“It is instructive to note that the tenure of commissioners has been set as six years and cannot be extended without an amendment of the Constitution by referendum. IEBC, like other commissions, must have at least three commissioners for it to be deemed properly constituted. Their roles cannot be performed by the secretariat.”
Amollo bases his argument on the timelines the Constitution sets in the event the results of the presidential elections are contested.
“The results of the election must be declared within seven days which takes us to August 15, a petition must be filed within seven days which takes us to August 22. The Supreme Court has 14 days to determine the petition and note they have asked that it be extended, at the very least that takes us to September 5, 2017.
“In case the court finds the election to be invalid, a fresh election must be held within 60 days which takes us to November 4. The IEBC then has seven days to declare results which takes us to November 11. In case the date of gazettement is considered as the date of appointment, then the term of commissioners will end on November 8, 2017. Regardless of the date taken, there is a prospect of the process going beyond the term of the IEBC Commissioners,” he argues.
In order to avert a similar situation in the case of the Judiciary, Amollo has also recommended that the Court of Appeal’s determination on the retirement age of judges be taken as final. Not only because the members of the Supreme Court bench have publicly already taken sides on the matter, but to negate any possibility of the bench falling short of the five judge minimum should a presidential election petition be filed.
“The positions of three out of the seven judges of the Supreme Court may be vacant before the next General elections. These are the positions of the Chief Justice, Deputy Chief Justice and a Judge (Philip Tunoi). Further, it could derail the swearing-in of the President-elect due to the absence of the Chief Justice, and/or Deputy Chief Justice one of whom must preside over the ceremony.”
In relation to which, Amollo has opposed the recent amendments to the law regarding the selection of the succeeding Chief Justice and Deputy Chief Justice.
Last month, President Uhuru Kenyatta assented to an amendment that requires the Judicial Service Commission (JSC) to supply him with three names from which to pick.