The Supreme Court has sounded a stern warning over Kenya’s troubled history of mistrust in its electoral processes, cautioning that the legitimacy of the country’s democratic order depends not only on strong institutions but also on the fidelity of political leaders to the Constitution and the sovereignty of the people.
In its advisory opinion on the mandate of the Independent Electoral and Boundaries Commission (IEBC), the Court traced the recurring trust deficit that has characterized Kenya’s elections from the findings of the Kriegler Commission after the 2007–2008 post-election crisis to the litigation that followed the 2022 presidential petition. The judges observed that this deficit did not occur by chance but is the product of decades of politicization of the electoral process, relentless attacks on the independence of the IEBC, and the failure to implement reforms in good faith and on time.
They warned that leaders who seek to undermine the Commission for short-term political gain weaken the very institutions they are duty-bound to protect, and instead urged them to strengthen accountability, address structural weaknesses, and reinforce public confidence in the impartiality and competence of the IEBC.
Delivering its opinion in Reference No. E004 of 2024, the Court clarified that the crucial process of delimiting electoral boundaries cannot proceed in the absence of commissioners. It held that delimitation is a constitutional mandate strictly reserved for commissioners under Article 88(4)(c) of the Constitution and cannot be delegated to the Secretariat, whose role, while important, is limited to supporting the Commission’s operations and not discharging its constitutional functions.
On the issue of timelines under Article 89(2) and (3), the Court acknowledged that boundary reviews are required every 8 to 12 years and must be completed at least a year before a General Election. However, it noted that extraordinary circumstances such as prolonged vacancies of commissioners may justify an extension. The judges clarified that only Parliament, through a constitutional amendment or resolution aligned with the recommendations of the National Dialogue Committee (NADCO), has the authority to extend such timelines.
The Court also rejected the Attorney General’s argument that the IEBC lacked capacity to seek the advisory opinion due to the absence of commissioners. It found that the Secretariat, as the custodian of the Commission’s day-to-day affairs, was within its mandate to seek guidance on matters of urgent constitutional significance.
In its closing observations, the Court underscored the principle of equality of the vote, warning that failure to review constituency and ward boundaries in line with population changes risks undermining fair representation and jeopardizing the integrity of the 2027 General Election. The opinion has renewed focus on the urgent reconstitution of the IEBC and the need for political actors to act in good faith to safeguard the country’s democratic future.
