Environment Cabinet Secretary (CS) Aden Duale has strongly criticized the position of constitutional lawyer Waikwa Wanyoike regarding the role of the Independent Electoral and Boundaries Commission (IEBC) in the nomination of a new deputy president, amid the ongoing impeachment hearing of Deputy President Rigathi Gachagua in the Senate.
In a recent column, Wanyoike argued that IEBC commissioners must be in office if a new deputy president is to be nominated, citing the constitutional mandate of the electoral body.
He pointed to Article 149(1) of the Constitution, which gives the President 14 days to nominate a replacement in the event of a vacancy, after which the National Assembly has 60 days to vote on the nominee.
Wanyoike argued that a holistic reading of the Constitution requires IEBC involvement in verifying the eligibility of the nominee, asserting that the Constitution assigns technical competency for the qualification of elective officers to the commission.
“Article 149 (1) of the Constitution provides that “within fourteen days after a vacancy in the office of Deputy President arises, the President shall nominate a person to fill the vacancy, and the National Assembly shall vote on the nomination within sixty days after receiving it.
“To a keen eye, a critical question immediately arises: does the Independent Electoral and Boundaries Commission (IEBC) have a role in the process? My answer is yes and for at least three reasons.
“First, because the proper way to read the Constitution is what is known as a holistic reading. Two, because the Constitution assigns the technical competency of determining the eligibility of elective officers to IEBC. Three, and closely related to two, because the Constitution is heavy on a system of checks and balances,” Wanyoike argues.
Flawed and impractical
However, in a quick rebuttal shared on X on Monday, October 14, 2024, Duale, a long-time lawmaker, dismissed Wanyoike’s interpretation as flawed and impractical.
“Wakili, you got it wrong,” Duale wrote.
“The Article fails to appreciate that the Constitution cannot be interpreted in a manner that defeats its purposes, objects, and good governance as dictated by Article 259.”
Duale emphasized that the Constitution mandates that at all times there must be both a President and a Deputy President in office, arguing that Wanyoike’s view would lead to a constitutional crisis if followed.
“The argument further defeats Article 249, which confers the National Assembly with the sole oversight role through vetting and approval processes,” Duale added.
Duale also questioned Wanyoike’s insistence on the presence of IEBC commissioners for the vetting process, describing the role of the electoral body in this context as purely administrative and not requiring commissioners.
“The argument fails to note that the role would not require commissioners to be in office,” he said, citing court rulings affirming that IEBC, even without commissioners, can clear administrative issues related to candidate nominations.
Cherera 4
The clash between the two legal minds comes as Kenya grapples with a prolonged leadership vacuum at IEBC.
The commission has been without commissioners since January 2023 following the exit of four members, popularly known as the Cherera Four, who disputed the 2022 presidential election results.
The retirement of IEBC Chair Wafula Chebukati and two other commissioners, Boya Molu and Abdi Guliye, added to the leadership gap.
The Cherera Four – Juliana Cherera, Francis Wandera, Irene Masit, and Justus Nyang’aya – resigned following a fallout over the results of the August 2022 presidential election.
The four former IEBC commissioners disputed the 2022 presidential election results announced by the commission’s former chair Wafula Chebukati. The other two commissioners, Abdi Yakub Guliye and Boya Molu agreed with the final tally of the election results.
President William Ruto on July 9, 2024, signed the IEBC (Amendment) Bill, 2024, setting the stage for the appointment of new commissioners, though the process has yet to be finalized.
As the Senate prepares to rule on the impeachment of Deputy President Gachagua, the debate over the role of the IEBC in such a critical process continues to unfold. Whether the absence of commissioners poses a significant legal hurdle remains to be seen.