Wanjiku Muhia — KE Legal Update

A recent walkout by lawyers representing Kipipiri MP Wanjiku Muhia from an Independent Electoral and Boundaries Commission (IEBC) Code of Conduct Enforcement Committee hearing has spotlighted critical questions surrounding the Commission's jurisdiction and procedural fairness in electoral dispute resolution. The legal team cited an "improperly constituted and hostile process" and a dispute over the committee's mandate to hear the matter, demanding an audience with the IEBC Chairperson. This incident underscores the ongoing tension between the IEBC's quasi-judicial powers and the right to fair administrative action, particularly in light of the Supreme Court's affirmation of the IEBC's authority to enforce its Code of Conduct. The event highlights the need for clear jurisdictional boundaries and robust procedural safeguards within Kenya's electoral framework, impacting how political parties and candidates navigate pre-election disputes.

The integrity of Kenya's electoral process hinges significantly on the effective and impartial resolution of disputes. A recent incident involving the walkout of lawyers representing Kipipiri Member of Parliament, Wanjiku Muhia, from an Independent Electoral and Boundaries Commission (IEBC) Electoral Code of Conduct Enforcement Committee hearing has brought these critical issues to the fore. The legal team, led by advocates Edward Muriu and Ndegwa Njiru, withdrew from the proceedings, alleging bias, procedural unfairness, and a predetermined outcome, specifically challenging the committee's jurisdiction to hear the matter.

This dramatic exit, prompted by the committee's rejection of an adjournment application and its insistence on proceeding with the hearing, underscores persistent concerns regarding the IEBC's quasi-judicial functions. The lawyers' demand for an audience with IEBC Chairperson Erastus Edung Ethekon signals a deeper challenge to the legitimacy and procedural propriety of the Commission's enforcement mechanisms. This article delves into the legal framework governing the IEBC's jurisdiction in code of conduct matters, examines the implications of such disputes for electoral justice, and considers the broader ramifications for legal practitioners navigating Kenya's complex electoral landscape.

The Independent Electoral and Boundaries Commission (IEBC) is established under Article 88(1) of the Constitution of Kenya, 2010, as the primary body responsible for conducting and supervising elections and referenda. Its extensive mandate, outlined in Article 88(4), includes the development of a code of conduct for candidates and parties contesting elections, and the monitoring of compliance with electoral legislation. To operationalise this, Section 110 of the Elections Act, 2011, mandates every political party and individual participating in an election to subscribe to and observe the Electoral Code of Conduct, as detailed in the Second Schedule of the Act. Contravention of this Code constitutes an offence.

Crucially, Article 88(4)(e) of the Constitution empowers the IEBC to settle electoral disputes, specifically including those relating to or arising from nominations, but explicitly excluding election petitions and disputes arising after the declaration of election results. In furtherance of this, the IEBC has established an Electoral Code of Conduct Enforcement Committee, which is tasked with hearing complaints regarding breaches of the Code. These rules clarify that the committee's jurisdiction extends to disputes or complaints stemming from Code violations, but not to post-election petitions. The High Court, established under Article 165 of the Constitution, holds unlimited original jurisdiction in civil and criminal matters and exercises supervisory jurisdiction over subordinate courts and any person, body, or authority exercising a judicial or quasi-judicial function.

The core of the dispute in the Muhia case revolves around the perceived jurisdictional limits and procedural fairness of the IEBC's Code of Conduct Enforcement Committee. While the IEBC, through its Electoral Code of Conduct Enforcement Rules, clearly delineates its authority to hear complaints arising from Code violations, the lawyers' challenge suggests a contention that the specific matter or the manner of its handling fell outside this mandate or violated principles of natural justice. The committee, presided over by Commissioner Alutalala Mukhwana, unequivocally rejected the jurisdictional objection, asserting its proper constitution and legal mandate.

This jurisdictional question, however, is not novel. The Supreme Court of Kenya, in the landmark case of *Independent Electoral and Boundaries Commission vs. Hon. Sabina Wanjiru Chege* (SC Petition No. 23 (E026) of 2022), definitively affirmed the IEBC's jurisdiction to summon, hear complaints, and make findings regarding breaches of the Electoral Code of Conduct, pursuant to Article 88(4)(e) of the Constitution. The Supreme Court held that the Electoral Code of Conduct is constitutionally sound and that the IEBC is empowered to enforce it through the issuance of summons and the conduct of trial proceedings. This ruling provides a clear legal precedent supporting the IEBC's authority in such matters, directly countering the type of jurisdictional challenge raised by Muhia's legal team.

Despite this clear pronouncement from the apex court, the lawyers' insistence on an audience with the IEBC Chairperson and their demand for time to seek High Court interpretation of a relevant Gazette Notice points to concerns beyond mere legal jurisdiction. Their allegations of bias, procedural unfairness, and a predetermined outcome suggest a challenge rooted in the principles of fair administrative action, as enshrined in Article 47 of the Constitution. Even where a body has jurisdiction, its exercise must adhere to due process. The High Court retains supervisory jurisdiction over quasi-judicial bodies like the IEBC, meaning that decisions of the Code of Conduct Enforcement Committee can be subjected to judicial review if procedural impropriety or illegality is alleged.

The walkout itself, while a strong protest, carries significant implications. It can be viewed as a tactical move to highlight perceived injustices and potentially lay the groundwork for a judicial review application. However, it also risks leaving the client unrepresented in a proceeding that the committee has deemed properly constituted and within its mandate, potentially leading to an adverse ruling in absentia. The IEBC's commitment to enforcing the Code of Conduct, as recently reiterated by Commissioner Moses Alutalala regarding political violence, indicates a firm stance against disruptions to the electoral process.

The walkout by lawyers in the Muhia case serves as a stark reminder of the persistent tensions surrounding the Independent Electoral and Boundaries Commission's role as a quasi-judicial body in Kenya's electoral framework. While the Supreme Court has unequivocally affirmed the IEBC's jurisdiction to enforce its Code of Conduct, challenges rooted in procedural fairness and alleged bias continue to emerge.

For legal practitioners, this incident underscores the critical importance of meticulously scrutinizing the procedural aspects of IEBC hearings and being prepared to navigate potential judicial review avenues. It highlights the ongoing need for the IEBC to ensure its enforcement committees operate with utmost transparency and adherence to fair administrative action principles, thereby bolstering public and stakeholder confidence in the electoral dispute resolution mechanisms. As Kenya approaches future elections, clarity on jurisdictional boundaries and consistent application of due process will be paramount to fostering a credible and peaceful electoral environment.