Nairobi —The High Court yesterday upheld the nomination of Erastus Edung Ethekon as Chairperson of the Independent Electoral and Boundaries Commission (IEBC), along with six commissioners, but declared their June 10 gazette appointment notice by President William Ruto invalid prompting the president to re-gazette the appointment of the new IEBC Commission today.
A three-judge bench ruled that while the nomination process met constitutional standards, the formal appointment by President William Ruto was done in violation of a standing court order.
In the judgment delivered Thursday evening, Justices Roselyne Aburili, John Chigiti, and Bahati Mwamuye stated, “A nominee cannot take oath of office based on an illegal appointment. The court cannot sanction an illegality.”
The judges added that the integrity of the IEBC’s reconstitution must be anchored on legal compliance, noting, “An illegality cannot be the foundation of legitimacy.”
Petitioners had challenged the appointments, citing lack of public participation, regional imbalance, and exclusion of persons with disabilities and marginalized communities. However, the court dismissed those claims for lack of evidence.
On the question of inclusivity, the bench ruled that public participation was adequately carried out. It further found that no two nominees came from the same ethnic group and that the principle of progressive inclusion applies to persons with disabilities, depending on available resources.
The judges also called on Parliament to enact a clear legal framework to guide public engagement in critical national appointments, especially involving independent constitutional offices.
With the ruling, President Ruto re-gazetted afresh the appointment of the new IEBC commission in a fresh notice today and issued the notice to regularize the appointments. The notice that was published today sets precedence for official swearing in of the commissioners. The new IEBC commissioners will be cleared to take the oath of office today and begin their official duties as the new IEBC commissioners.
The seven officials had been nominated to fill vacancies left by the previous commission, which dissolved after the 2022 general election. The IEBC had remained incomplete, delaying by-elections and early preparations for the 2027 polls.
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