Why court allowed IEBC commissioner Irene Masit to stay in office illegally
In June this year, the High Court ruled that one of the four commissioners who differed with the Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati over the final results of the presidential election was illegally in office but she could go on serving, Nairobi News has established.
The High Court in Nairobi ruled that Ms Irene Cherop Masit who contested in the 2017 polls but lost was appointed illegally since it was unconstitutional as she was not eligible for the job.
However, she was given the greenlight to continue serving in order to avoid interfering with the preparations of the August 9, 2022 General Election and also cause a constitutional crisis in the country.
“Whereas this court might be seen as sanctioning an unconstitutionality, the circumstances of the matter call for the maintenance of the prevailing status. It is in greater public interest and good that the preparations for the forthcoming general election are not interfered with, lest the country finds itself in a constitutional crisis,” ruled Justice Anthony Mrima.
Justice Mrima said that Ms Masit was not eligible for appointment as a commissioner of the IEBC since five years had not ended from the time she ran for the Elgeyo-Marakwet County woman representative position after she lost in the Jubilee nominations.
She was appointed to the commission by President Uhuru Kenyatta in September 2021 causing an uproar from the civil society and the National Assembly.
The Judge further stated that party primaries were part of an election and her appointment should have been after the lapse of five years.
Rights activist Ms Nornael Okello, had moved to court saying that the approval of Ms Masit appointment by the National Assembly in September 2021 and the appointment by the Head of State was unconstitutional.
The activist said that the petition was based on provisions of Article 88(2) of the Constitution which stated that “a person is not eligible for appointment as a member of the commission if the person has, at any time within the preceding five years, held office, or stood for election as a MP or a MCA; or holds any state office, or a member of the governing body of a political party.”