Selective justice: IEBC accused of double standards in enforcing electoral laws

The Independent Electoral and Boundaries Commission (IEBC) in Kenya recently threatened to cancel or postpone the Ol Kalou parliamentary by-election due to escalating violence and voter bribery. This warning has ignited accusations of selective justice from opposition leaders, who question the Commission's impartiality and consistency in enforcing electoral laws. While the IEBC possesses a robust legal mandate under the Constitution and the Elections Act to ensure free and fair elections, critics argue that its actions in Ol Kalou, including the fining of a Member of Parliament for incitement, contrast with perceived inaction in other electoral contexts. This article examines the legal framework governing the IEBC's enforcement powers and the implications of these allegations for electoral integrity and public confidence in Kenya's democratic processes.

Kenya's electoral landscape is frequently marked by intense political competition, and the recent parliamentary by-election in Ol Kalou constituency has proven no exception. The Independent Electoral and Boundaries Commission (IEBC), the body constitutionally mandated to oversee elections, issued a stern warning, threatening to cancel or postpone the by-election scheduled for July 16, 2026, citing rampant violence, voter bribery, and breaches of the electoral code of conduct. This unprecedented threat, coupled with the fining of a Member of Parliament for inflammatory remarks, has drawn sharp criticism from opposition leaders, who accuse the IEBC of applying double standards and acting with selective justice.

These accusations raise fundamental questions about the consistent application of electoral laws and the impartiality of the IEBC, an institution whose independence is crucial for democratic stability. This article delves into the legal powers vested in the IEBC to enforce electoral integrity, analyzes the specific actions taken in the context of the Ol Kalou by-election, and critically examines the claims of selective justice. It aims to provide legal practitioners with a comprehensive understanding of the legal framework, the challenges of enforcement, and the broader implications for Kenya's electoral jurisprudence.

The Independent Electoral and Boundaries Commission (IEBC) derives its mandate from Article 88(4) of the Constitution of Kenya, 2010, which outlines its functions, including the conduct and supervision of elections and referenda, continuous voter registration, delimitation of electoral units, regulation of political parties, and the settlement of electoral disputes. This constitutional foundation is further elaborated by the Elections Act, 2011 (No. 24 of 2011), and the Election Offences Act, 2016 (No. 37 of 2016), which together form the primary legal framework for electoral governance in Kenya.

Crucially, the IEBC is vested with significant powers to enforce electoral laws and the Electoral Code of Conduct. The Elections Act, for instance, explicitly grants the Commission the power to postpone elections under Section 55B. Furthermore, the IEBC has an investigative and prosecutorial function regarding electoral offenses, enabling it to file criminal charges and impose sanctions for violations of the Code of Conduct. To operationalize this, the IEBC has established an Electoral Code of Conduct Enforcement Committee, comprising at least five commissioners, which is empowered to investigate complaints, issue summons, order the production of documents, and apply to the High Court for various orders. Breaches of the Code of Conduct, which include acts of violence, bribery, and incitement, can lead to severe penalties, including fines, imprisonment, and even disqualification from contesting future elections.

The IEBC's recent actions concerning the Ol Kalou by-election highlight the complexities of electoral law enforcement. The Commission's Chairperson, Erastus Edung Ethekon, explicitly warned that the by-election could be postponed or cancelled if violence, voter bribery, and breaches of the electoral code persisted, noting reports of a fatality linked to the unrest. This warning was swiftly followed by the IEBC's Electoral Code of Conduct Enforcement Committee fining Kipipiri MP Wanjiku Muhia Ksh 1.5 million and ordering a public apology for making remarks deemed capable of inciting violence and hostility during the Ol Kalou campaigns. These actions demonstrate the IEBC's willingness to exercise its statutory powers to maintain order and uphold the integrity of the electoral process.

However, these decisive steps have been met with strong accusations of selective justice from opposition figures. Former Deputy President Rigathi Gachagua and Kiharu MP Ndindi Nyoro have publicly questioned the IEBC's impartiality, alleging that the Commission has failed to take similar robust action in other by-elections previously marred by violence and irregularities. Gachagua specifically challenged the IEBC to enforce existing laws against alleged perpetrators of bribery and violence, including state officers, rather than merely threatening to cancel the election. This criticism underscores a perceived inconsistency in the application of the law, suggesting that the IEBC's enforcement efforts may be influenced by political considerations rather than a uniform commitment to electoral integrity.

The legal tension lies between the IEBC's broad discretionary powers to manage elections and the public expectation of consistent, non-discriminatory enforcement. While Section 55B of the Elections Act grants the power to postpone elections, the exercise of such power must be reasonable, proportionate, and demonstrably impartial to avoid undermining public confidence. Former Public Service Cabinet Secretary Justin Muturi articulated this concern, posing a critical constitutional question: if a by-election can be postponed under these circumstances, what safeguards exist to prevent similar reasoning from being applied to a general election? This highlights the need for the IEBC to not only act within its legal mandate but also to ensure its actions are perceived as fair and consistent across all electoral contests, thereby safeguarding the foundational principles of democratic governance.

The controversy surrounding the Ol Kalou by-election and the IEBC's enforcement actions underscores the delicate balance between maintaining electoral order and upholding public trust in an independent electoral body. While the IEBC has a clear constitutional and statutory mandate to enforce electoral laws and the Code of Conduct, the accusations of selective justice highlight the critical importance of consistent and transparent application of these powers. The Commission's ability to deter electoral malpractices and ensure credible elections hinges not only on its legal authority but also on its perceived impartiality and unwavering commitment to fairness.

For legal practitioners, this episode serves as a crucial reminder of the dynamic and often contentious nature of electoral law in Kenya. Future developments will likely focus on how the IEBC navigates these accusations, whether through more robust and visibly consistent enforcement across all elections, or through judicial challenges that may further define the scope and limits of its discretionary powers. Attorneys advising political parties, candidates, or civil society organizations must remain vigilant to the evolving interpretations and applications of the Elections Act and the Election Offences Act, particularly concerning the enforcement of the Electoral Code of Conduct and the grounds for postponing or cancelling elections. The integrity of Kenya's democratic process demands nothing less than unwavering adherence to the rule of law, applied equally to all participants.