A petition to prevent Charles Nyachae and Joy Mdivo from being interviewed for the role of Chairperson of the Independent Electoral and Boundaries Commission (IEBC) has been filed, sparking a new court battle over the choice of Kenya’s next electoral agency boss.
Operation Linda Jamii filed the petition, which claims that the two applicants are unfit for the position because of possible conflicts of interest and their ongoing public positions that they have not yet resigned.
The petitioners contend that both Nyachae and Mdivo hold state positions, in contravention of Article 260 of the Constitution, which forbids public officials from holding multiple state positions concurrently, according to court filings at the High Court in Naivasha.
At the moment, Mdivo is the chair of the Kenya Power Board, and Nyachae is the chair of the Kenya School of Government Council.
Furthermore, given the IEBC’s responsibility to impartially oversee elections, Mdivo’s position as the head of the United Democratic Alliance (UDA) party Electoral Disputes Resolution Committee has sparked questions about her objectivity.
Citing constitutional rules on integrity and leadership, Prof. Fredrick Onyango Ogola filed the petition on behalf of Operation Linda Jamii, claiming that the selection panel’s choice to shortlist the two was illegal.
The group maintains that permitting those with political affiliations or those employed by the State to hold positions inside the IEBC undermines the organization’s independence and erodes public confidence in the election process.
The Law Society of Kenya (LSK) and Katiba Institute are two legal and civil society groups that have expressed interest in the case and have been enjoined as interested parties.
The Katiba Institute has cautioned against the weakening of constitutional protections intended to guarantee election management’s fairness, while the LSK has reaffirmed that independent commissions should continue to be free from political influence.
Another letter that challenges Mdivo’s nomination and outlines her close connections to the ruling UDA party strengthens the argument against her.
The 2024 High Court ruling on Jubilee Party officials, which established that people with political affiliations cannot occupy independent State jobs, is one of the recent court decisions cited in the text.
The submission also makes comparisons to a previous instance in which Prof. Adams Oloo’s appointment to the IEBC selection panel was contested on like grounds.
The IEBC selection panel is under increasing pressure to reevaluate its shortlist and respect constitutional norms as the legal procedures progress.
In order to prevent the two from attending the planned interviews until the issue is settled, the petitioners are requesting a court injunction. The situation is urgent because Nyachae and Mdivo have interviews scheduled for March 24 and 25, respectively.
The two are part of a shortlist of 11 applicants for the post that was left open after the late IEBC Chair Wafula Chebukati’s term ended.
The others are Saul Simiyu Wasilwa, Francis Kakai Kissinger, Jacob Ngwele Muvengei, Lilian Wanjiku Manegene, Robert Akumu Asembo, Edward Katama Ngeywa, Erastus Edung Ethekon, former Judiciary Chief Registrar Anne Amadi, and Abdulqadir Lorot Ramadhan.
