Gikaria to Face IEBC Tuesday After Committee Grants Final Adjournment

The Independent Electoral and Boundaries Commission (IEBC) Code of Conduct Enforcement Committee recently granted a final adjournment to Nakuru Town East Member of Parliament David Gikaria, who is facing allegations of voter bribery during the Ol Kalou parliamentary by-election campaigns. This decision, underscored by Committee Chairperson Moses Mukhwana's statement on accommodating requests to prevent the trampling of individual rights, highlights the paramount importance of due process and fair hearing in Kenya's electoral dispute resolution framework. It reinforces the constitutional guarantees of fair administrative action and access to justice, demonstrating the committee's commitment to procedural fairness even amidst strict electoral timelines and the high stakes of political contests.

Kenya's electoral landscape is frequently marked by intense competition and, at times, contentious disputes. In a recent development that underscores the judiciary's and quasi-judicial bodies' commitment to procedural fairness, the Independent Electoral and Boundaries Commission (IEBC) Code of Conduct Enforcement Committee granted a final adjournment to Nakuru Town East Member of Parliament David Gikaria. Gikaria is scheduled to appear before the committee to answer allegations of voter bribery during campaigns for the Ol Kalou parliamentary by-election. [8]

The decision to grant an adjournment, as articulated by Committee Chairperson Moses Mukhwana, reflects a fundamental principle of justice: "Where the rights of any individual is about to be trampled upon, we must bend over backwards to accommodate that particular request." [8] This article delves into the legal implications of this decision, examining the statutory and constitutional underpinnings of electoral dispute resolution in Kenya and the critical role of fair hearing in safeguarding the integrity of the electoral process.

The framework for electoral dispute resolution in Kenya is primarily enshrined in the Constitution of Kenya, 2010, the Elections Act, 2011 (No. 24 of 2011), and the subsidiary Elections (General) Regulations, 2012 (Legal Notice No. 128 of 2012). Article 88(4) of the Constitution mandates the IEBC with the responsibility for the settlement of electoral disputes, including those arising from nominations. [2] The Elections Act, 2011, further elaborates on these mechanisms, particularly in Part VII, which addresses dispute resolution by the Commission. Section 74 of the Act specifically empowers the Commission to settle certain disputes. [4, 18]

The IEBC's Dispute Resolution Committee (DRC), or in this specific instance, the Electoral Code of Conduct Enforcement Committee, operates within this legal architecture. These committees are tasked with hearing and determining complaints related to the electoral process, including breaches of the Electoral Code of Conduct, which is contained in the Second Schedule of the Elections Act, 2011. [2, 5, 6] A cornerstone of Kenya's justice system, and indeed any democratic process, is the right to a fair hearing, as guaranteed by Article 50(1) of the Constitution. This Article stipulates that every person has the right to have any dispute resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. [14, 17] This constitutional imperative guides the procedural conduct of all bodies involved in electoral dispute resolution, including the IEBC's committees.

The case involving MP David Gikaria centers on allegations of voter bribery during the Ol Kalou parliamentary by-election campaigns. [8] Such allegations, if proven, constitute a serious breach of the Electoral Code of Conduct and undermine the principles of free and fair elections, as outlined in Article 81(e) of the Constitution, which requires elections to be free from violence, intimidation, improper influence, or corruption. [22] The IEBC's Code of Conduct Enforcement Committee was seized of the matter, initiating investigations following reports and audio-visual material allegedly showing the lawmaker distributing money to voters. [8]

The committee's decision to grant a final adjournment, as highlighted by Chairperson Mukhwana, directly invokes the principle of natural justice, specifically the right to be heard (audi alteram partem). This principle dictates that parties must be given adequate notice of the allegations against them and a reasonable opportunity to present their case and respond to evidence. In the context of electoral disputes, where timelines are often stringent, an adjournment can be crucial for a party to adequately prepare their defense, gather evidence, or secure legal representation. The IEBC has, in the past, demonstrated a commitment to fair process, as evidenced by its resolution of 323 nomination disputes within ten days during the 2022 election period, often granting opportunities to correct paperwork mistakes rather than immediately disqualifying candidates. [12, 13, 25]

This approach aligns with the broader judicial trend in Kenya, particularly post-2010 Constitution, which emphasizes substantive electoral justice over strict adherence to technicalities, aiming to ensure that electoral outcomes genuinely reflect the will of the people. [16] The IEBC's recent Pre-Election Dispute Resolution Report for the 2022 General Election also indicates a move towards enhancing the credibility of its dispute resolution mechanisms, including the appointment of independent lawyers to chair panels and a focus on problem-solving. [13, 25] The granting of an adjournment in Gikaria's case, therefore, is not merely a procedural formality but a substantive affirmation of the right to a fair hearing, ensuring that the process itself is perceived as just and legitimate, which is vital for public confidence in the electoral system. [19, 23]

The IEBC Code of Conduct Enforcement Committee's decision to grant a final adjournment in the matter involving MP David Gikaria serves as a crucial reminder of the enduring commitment to fair hearing principles within Kenya's electoral justice system. It underscores that even in the face of strict electoral timelines and the imperative to resolve disputes expeditiously, the fundamental rights of individuals, particularly the right to be heard, must be meticulously upheld. This approach is vital for fostering public trust in the IEBC and the broader electoral process, mitigating potential conflicts, and ensuring that electoral outcomes are not only legally sound but also perceived as legitimate.

For legal practitioners, this development reinforces the importance of advising clients on the robust procedural safeguards available within the IEBC's dispute resolution mechanisms. It highlights that committees, while operating under pressure, are expected to "bend over backwards" to ensure fairness. Practitioners should therefore be prepared to leverage these principles, advocating for adequate time and facilities for their clients to present their cases effectively. As Kenya continues to refine its electoral laws and processes, the consistent application of constitutional principles of justice by bodies like the IEBC Code of Conduct Enforcement Committee will remain a critical area to watch, shaping the future of electoral integrity in the nation.