Activist Okiyah Omtata has moved to court seeking to block president Uhuru Kenyatta from appointing members nominated to the selection panel of the Independent Electoral and Boundaries Commission.
Okiyah Omtatah is challenging the constitutional validity of the Independent Electoral and Boundaries Commission (Amendment) Act 2020.
He wants the court to suspend the coming into force or implementation and operationalization of the Independent Electoral and Boundaries Commission (Amendment) Act No. 18 of 2020.
“A conservatory order be issued staying or suspending the coming into force or the implementation and operationalization of section 2 and 3 of the Independent Electoral and Boundaries Commission (Amendment) Act No. 18 of 2020 pending hearing and determination of the case,” states Omtatah.
The activist argues that the Amendment Act amends the first schedule to the Independent Electoral and Boundaries Commission Act No. 9 of 2011. The Amendment Act provides for the composition of members of the selection panel which is charged with the responsibility of nominating the chairperson and commissioners of the IEBC.
“Section 2 of the Amendment Act provides that the selection panel be constituted of seven members instead of “such persons as parliament shall determine” as provided in the original Act and section 3 of the Amendment Act effectively reposes in the PSC the administrative aspects relating to the selection panel and specifically the compilation and transmission to the president for appointment of names of the nominees to the selection panel,” sctates Omtata.
He is seeking for an injunction restraining Parliamentary Service Commission, Law Society of Kenya and the Inter-Religious Council of Kenya from nominating members to the selection panel of the Independent Electoral and Boundaries Commission and parliamentary service commission from compiling and forwarding to the president names of persons nominated under section 2 of IEBC (Amendment) Act No. 18 of 2020 pending hearing and determination of the case.
Omtatah told the court that his petition was urgent and needed to be dispensed with expeditiously, failure to which it will be overtaken by event since the amendment act comes into force on 13th November 2020. Justice Murima certified the application urgent and fixed it for hearing on 12th November 2020.
He further told the court that the Amendment Act undermines or has the effect of undermining the Independence which the constitution grants the IEBC and it is against the principle of the rule of law in that neither the constitution nor the parliamentary service commission Act grants the PSCor parliament the power to control the selection process of the IEBC.
He accused parliament of using its legislative power to assign itself a role expressly given to it or contemplated to be within its province by the constitution and directly undermines the principles of separation of powers of checks and balances, abused its and abused its power and failed to observe the constitutional principles of good governance.
