Selective justice: IEBC's double standards in enforcing electoral laws

The Independent Electoral and Boundaries Commission (IEBC) of Kenya faces mounting criticism over alleged double standards in enforcing electoral laws, particularly concerning the upcoming Ol Kalou by-election. While the IEBC has threatened to cancel or postpone the by-election due to widespread disorder, violence, and voter bribery, opposition leaders contend that the Commission exhibits selective justice. They point to past by-elections where similar malpractices allegedly went unaddressed, raising concerns about the IEBC's impartiality and independence ahead of the 2027 General Election. This article examines the legal framework governing the IEBC's enforcement powers and the implications of these allegations for electoral integrity in Kenya.

Kenya's Independent Electoral and Boundaries Commission (IEBC), the body constitutionally mandated to conduct and supervise elections, is currently under intense scrutiny for its perceived selective application of electoral laws. The immediate catalyst for this renewed focus is the ongoing Ol Kalou by-election, where the IEBC has issued stern warnings, including the potential cancellation or postponement of the poll, in response to escalating violence, voter bribery, and breaches of the Electoral Code of Conduct. This firm stance, however, has been met with accusations from opposition leaders who argue that the Commission's actions betray a pattern of double standards, selectively enforcing rules against certain political actors while overlooking similar infractions by others.

The integrity and impartiality of the IEBC are foundational to Kenya's democratic process. Article 81(e) of the Constitution of Kenya, 2010, explicitly mandates that elections must be free and fair, conducted by an independent body, and administered in an impartial, neutral, efficient, accurate, and accountable manner. Allegations of selective justice directly undermine these constitutional principles, eroding public trust in the electoral system. This article delves into the legal framework empowering the IEBC, analyzes the specific controversies surrounding the Ol Kalou by-election, and explores the broader implications of these accusations for the future of electoral governance in Kenya.

The Independent Electoral and Boundaries Commission (IEBC) was established under Article 88 of the Constitution of Kenya, 2010, as an independent regulatory agency. Its extensive mandate includes the continuous registration of voters, delimitation of electoral boundaries, regulation of political parties, settlement of pre-election disputes, voter education, and the development and enforcement of a code of conduct for candidates and parties. To execute this mandate, Parliament enacted key legislation, notably the Elections Act, 2011 (Act No. 24 of 2011), and the Election Offences Act, 2016 (Act No. 37 of 2016).

The Elections Act, 2011, provides the procedural framework for conducting elections and referenda, while the Election Offences Act, 2016, criminalizes a wide range of electoral malpractices, including bribery, voter intimidation, misuse of public resources, and breaches of the Electoral Code of Conduct. The Electoral Code of Conduct, which all political parties and candidates must subscribe to, aims to foster a climate of tolerance and ensure free political campaigning without fear or coercion. The IEBC's power to postpone or cancel elections, as threatened in the Ol Kalou by-election, is a critical enforcement tool, often invoked when the electoral environment is deemed unsafe or compromised, as provided for under Section 55B of the Elections Act, 2011.

The IEBC's recent actions concerning the Ol Kalou by-election highlight the complexities and challenges of electoral law enforcement in Kenya. The Commission has launched investigations into serious allegations, including voter bribery, illegal late-night campaigns, violence, and the deployment of suspected criminal gangs. In a notable development, Kipipiri MP Wanjiku Muhia was fined KSh 1.5 million by the IEBC's Electoral Code of Conduct Enforcement Committee for making remarks deemed capable of inciting violence and hostility, a direct breach of Paragraph 6(a) of the Electoral Code of Conduct. Additionally, Nakuru Senator David Gikaria is under investigation for allegedly mobilizing voters through cash incentives.

While these enforcement actions demonstrate the IEBC's capacity to act, they have simultaneously fueled accusations of selective justice. Opposition leaders, including Democracy for the Citizens Party (DCP) leader Rigathi Gachagua, argue that the IEBC has remained conspicuously silent on similar electoral malpractices in previous by-elections, such as those in Baringo North, Malava, Narok Township, and Kasipul-Kabondo. This perceived inconsistency raises questions about the uniform application of the law and whether political affiliations influence the vigour of enforcement. The allegations extend to claims of senior government officials using public resources to campaign for specific candidates, an offense explicitly prohibited under Section 15 of the Election Offences Act, 2016.

The legal framework, particularly Article 81(e) of the Constitution, demands impartiality and neutrality from the IEBC. The Elections Act, 2011, and the Election Offences Act, 2016, provide robust tools for addressing electoral misconduct. However, the effectiveness of these laws hinges on consistent and unbiased enforcement. The perception of double standards can undermine the legitimacy of the IEBC's decisions and, by extension, the credibility of the electoral outcomes. This challenge is not unique to Kenya, as many emerging democracies grapple with ensuring independent electoral bodies can enforce laws without succumbing to political pressure or appearing partisan. The Supreme Court of Kenya, in its interpretation of Section 83 of the Elections Act, 2011, has emphasized that an election can be nullified if it substantially violates constitutional principles, even if the non-compliance did not affect the result, underscoring the importance of adherence to the spirit of the law.

The allegations of selective justice against the IEBC in the context of the Ol Kalou by-election pose a significant challenge to Kenya's electoral integrity. While the Commission's recent actions, such as fining a Member of Parliament for electoral misconduct, signal a commitment to enforcing the Electoral Code of Conduct, the accompanying accusations of inconsistency demand serious attention. The perception that electoral laws are applied differently based on political expediency can severely erode public confidence in the IEBC's independence and its ability to deliver free and fair elections.

Practitioners in electoral law must closely monitor how the IEBC addresses these allegations and whether it develops more transparent and consistent enforcement mechanisms. The onus is on the IEBC to demonstrate its impartiality not just through punitive measures, but through a uniform application of the law across all political divides and in all electoral contests. Failure to do so risks deepening mistrust in electoral institutions, potentially leading to increased post-election disputes and instability. Moving forward, a renewed commitment to the constitutional principles of impartiality, neutrality, and accountability, coupled with clear and consistent enforcement guidelines, will be crucial for safeguarding the democratic aspirations of the Kenyan people.