A voter from Banissa constituency in Mandera County has filed a petition in the High Court seeking to compel the electoral body to conduct a by-election for the vacant seat within 90 days as the law requires.
Brian Higgins Mbugua also wants the court to order the Selection Panel for recruitment of nominees for chairperson and members of the Independent Electoral and Boundaries Commission (IEBC) to expedite the filling of four vacant positions in the electoral body and submit its report to the President and Parliament within 14 days.
The petition filed on Thursday under a certificate of urgency, names the IEBC, Commission Secretary/CEO, the Selection Panel, the National Assembly, and the Attorney General as respondents.
Banissa constituency seat fell vacant on March 15, 2023, following the death of MP. The petitioner claims the IEBC has failed to declare the seat vacant and announce the by-election date within 21 days as stipulated by Section 16 (3) of the Elections Act, 2011.
The petitioner further claims the IEBC is not properly constituted as it only has three commissioners of the required seven, following the resignation of four commissioners in 2021.
He argues that this violates Article 250 (1) of the Constitution, which provides that each commission shall consist of at least three but not more than nine members.
He accuses the Selection Panel of inordinate delay in completing its mandate of recruiting nominees. He says the Selection Panel was gazetted on February 10, 2023, and was expected to complete its work within 45 days. He says the panel has not made any progress or communicated any reasons for the delay.
The petitioner contends that failure by IEBC to conduct a by-election and delay by the panel in recruiting nominees amount to a violation of his constitutional rights and those of other voters in Banissa constituency.
“A declaration that the Selection Panel has failed to perform its statutory duty and that it must submit its report to the President and Parliament within 14 days from the date of filing this petition,” the petition reads, adding, “An order directing IEBC to declare the Banissa constituency seat vacant and announce the date of the by-election within seven days from the date of this order.”
He wants the High Court to issue an order directing the Selection Panel to expedite its work and submit its report to the President and Parliament within seven days from the date of this order, as well as an order restraining the IEBC from conducting any electoral activity until it is fully constituted.
“An order awarding costs of this petition to be borne by IEBC and/or any other respondent who opposes this petition,” the petition said.