Wanjiku Muhia Lawyers Walk Out of IEBC Electoral Code of Conduct Enforcement Committee Hearing

Lawyers representing Kipipiri MP Wanjiku Muhia staged a walkout from an Independent Electoral and Boundaries Commission (IEBC) Electoral Code of Conduct Enforcement Committee hearing in Kenya, citing allegations of bias, procedural unfairness, and a fundamental dispute over the committee's jurisdiction and proper constitution. The legal team argued that the panel was not lawfully constituted to hear the matter, a preliminary objection that the committee ultimately dismissed before proceeding with the hearing in the absence of the defence. This incident highlights critical issues surrounding the procedural integrity and jurisdictional boundaries of quasi-judicial electoral dispute resolution mechanisms in Kenya, particularly in light of constitutional guarantees for fair administrative action and recent Supreme Court pronouncements affirming the IEBC's mandate in enforcing its Code of Conduct.

A recent hearing before the Independent Electoral and Boundaries Commission (IEBC) Electoral Code of Conduct Enforcement Committee in Kenya was dramatically interrupted when lawyers representing Kipipiri Member of Parliament, Wanjiku Muhia, withdrew from the proceedings. The legal team cited profound concerns regarding the committee's impartiality, procedural fairness, and, crucially, its jurisdictional competence, alleging that the panel was improperly constituted and pursuing a predetermined outcome against their client.

This walkout underscores persistent tensions in Kenya's electoral dispute resolution framework, particularly concerning the balance between expeditious justice and adherence to due process. For legal practitioners, the incident raises pertinent questions about the scope of administrative tribunals' powers, the grounds for challenging their jurisdiction, and the constitutional safeguards for fair administrative action. This article will delve into the legal context surrounding the IEBC's enforcement committee, analyse the merits of the jurisdictional and procedural objections raised, and discuss the broader implications for electoral justice in Kenya.

The Independent Electoral and Boundaries Commission (IEBC) is established under Article 88(1) of the Constitution of Kenya, 2010, with a broad mandate to conduct and supervise elections and referenda. Central to its functions is the settlement of electoral disputes, including those relating to or arising from nominations, though it excludes election petitions and disputes after the declaration of election results.

The legal framework governing the Electoral Code of Conduct is primarily found in Section 110 of the Elections Act, 2011, and the Second Schedule thereto, which sets out the Code itself. Article 84 of the Constitution mandates all candidates and political parties to comply with the code of conduct prescribed by the IEBC. To enforce this Code, the IEBC is empowered to establish an Electoral Code of Conduct Enforcement Committee. The Electoral Code of Conduct Enforcement Rules stipulate that this committee shall comprise not less than five members of the Commission and be chaired by a member appointed by the Chairperson of the IEBC. This committee is vested with quasi-judicial powers to investigate complaints, summon individuals, receive testimony, and make findings on breaches of the Code.

Significantly, the Supreme Court of Kenya, in *Independent Electoral and Boundaries Commission v. Hon. Sabina Wanjiru Chege* (2023), definitively affirmed the IEBC's jurisdiction to summon, hear complaints, and make findings on breaches of the Electoral Code of Conduct, dismissing earlier conflicting rulings by superior courts. The Court underscored that the Electoral Code of Conduct is constitutionally sound and essential for the IEBC to perform its mandate of ensuring free and fair elections. This ruling solidified the legal basis for the IEBC's enforcement committee, making jurisdictional challenges based on the committee's very existence largely untenable, but leaving room for challenges based on its proper constitution or procedural fairness.

The walkout by Kipipiri MP Wanjiku Muhia's legal team was predicated on three core arguments: bias, procedural unfairness, and a challenge to the committee's jurisdiction based on its alleged improper constitution. The claim of procedural unfairness and bias directly invokes Article 47 of the Constitution of Kenya, 2010, which guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. This right is operationalized by the Fair Administrative Action Act, 2015, which sets out minimum standards for decision-making by administrative bodies, including requirements for impartiality, due process, and the right to be heard. Allegations of a "predetermined outcome" and refusal to grant an adjournment, as claimed by Muhia’s lawyers, would, if substantiated, constitute a breach of these fundamental constitutional and statutory rights.

The primary jurisdictional dispute revolved around the composition of the Enforcement Committee. Muhia's lawyers contended that the committee was not properly constituted and therefore lacked the legal mandate to hear the matter, arguing that the hearing ought to have been presided over by the IEBC Chairperson or Vice-Chairperson, or properly constituted under their lawful delegation. However, the IEBC's own Electoral Code of Conduct Enforcement Rules state that the committee "shall be chaired by a member appointed by the Chairperson of the Independent Electoral and Boundaries Commission" and comprise not less than five members. The committee, chaired by Commissioner Alutalala Mukhwana, dismissed the objection, asserting that it was lawfully constituted and had the jurisdiction to proceed. This highlights a potential divergence in interpretation between the legal team and the IEBC regarding the specific requirements for the committee's chair, despite the clear wording of the rules allowing for a Chairperson-appointed member. The Supreme Court's ruling in *Sabina Chege* affirmed the IEBC's general jurisdiction to enforce the Code, but did not delve into the specifics of the committee's internal composition beyond its constitutional soundness.

When a party walks out of proceedings, as occurred here, the administrative body typically has the discretion to proceed *ex parte*, as the IEBC committee did. However, such a decision can expose the proceedings to subsequent judicial review on grounds of procedural impropriety or denial of natural justice, especially if the jurisdictional challenge was genuinely arguable or if the refusal to grant an adjournment was unreasonable. The High Court, under its supervisory jurisdiction, can review administrative actions for legality, reasonableness, and procedural fairness, and may issue remedies such as certiorari to quash unlawful decisions. The lawyers' vow to challenge the proceedings in the High Court indicates this likely next step. This scenario underscores the delicate balance quasi-judicial bodies must strike between efficient dispute resolution and upholding fundamental rights to fair hearing.

The walkout by Kipipiri MP Wanjiku Muhia's legal team from the IEBC Code of Conduct hearing serves as a stark reminder of the intricate challenges inherent in electoral dispute resolution in Kenya. While the Supreme Court has unequivocally affirmed the IEBC's constitutional mandate to enforce its Electoral Code of Conduct, the incident highlights that disputes can still arise over the proper constitution and procedural fairness of its enforcement mechanisms. The claims of bias and procedural unfairness, particularly the refusal of an adjournment and the alleged improper composition of the panel, touch upon the core tenets of fair administrative action enshrined in Article 47 of the Constitution.

For legal practitioners, this case reinforces the critical importance of meticulously scrutinising the procedural rules and jurisdictional limits of administrative tribunals. Raising preliminary objections regarding jurisdiction and procedural propriety at the earliest opportunity is paramount, as is understanding the strategic implications of a walkout. While such actions can signal profound disagreement, they also carry the risk of proceedings continuing *ex parte*, necessitating a robust judicial review strategy. Going forward, all eyes will be on how the High Court addresses the anticipated challenge to the IEBC committee's proceedings, as its determination will further clarify the boundaries of the IEBC's quasi-judicial powers and reinforce the standards of administrative justice in Kenya's electoral landscape.