The National Assembly wants the High Court to lift orders that halted the planned vetting of President William Ruto’s seven nominees for chairperson and members of the electoral commission.
In an application filed in court under certificate of urgency on Thursday, the MPs argue that public interest overwhelmingly favours the continuation of the approval process.
This is because members of the public have already submitted memoranda, some questioning the selection process of the nominees, and expect their views to be heard and considered by the vetting committee.
Through the Deputy Clerk of the National Assembly Jeremiah Ndombi, the National Assembly says the interim orders were not supposed to be issued since the petitioners –Kelvin Roy Omondi and Boniface Mwangi –had not demonstrated that they have a strong case against the nominees.
He says the vetting is subject to strict statutory timelines and existence of the interim orders issued by Justice Lawrence Mugambi would negatively affect the process.
The vetting committee on Justice and Legal Affairs is expected to consider the nominees within 28 days, as stipulated in the Public Appointments (Parliamentary Approval) Act, and submit its final report to the House for approval by May 27, 2025.
“The issues raised by the Petitioners primarily concern a process that is actively ongoing within the constitutional and statutory framework of the National Assembly, and which process is subject to strict statutory timelines that must be complied with,” says Mr Ndombi.
The order was issued on Monday this week, suspending the planned vetting until May 29, 2025 when the court is scheduled to issue a substantive ruling.
This followed an application by the petitioners, who alleged that it was unlawful for President Ruto to nominate the seven persons to the Independent Electoral and Boundaries Commission (IEBC) without consulting the Opposition Party.
They also alleged that four of the seven nominees -Erastus Edung Ethekon (proposed chairperson) together with Hassan Noor Hassan, Mary Karen Sorobit and Anne Nderitu -were ineligible for the job. The other three nominees are Moses Mukwana, Francis Odhiambo and Fahima Araphat Abdallah.
However, the National Assembly says the matter having been seized by the Departmental Committee on Justice and Legal Affairs (JLAC) the court lacked authority to interfere.
“The approval process is therefore live and ongoing and any interference by this court at this stage would be premature and injurious to the constitutional right of public participation. One of the issues that the Committee on Justice and Legal Affairs will consider during the approval process is whether the correct procedure was used to arrive at the nominees’ names,” says Mr Ndombi.
He further pleads the issues raised by the petitioners could have been raised and considered by the vetting committee, which is mandated to undertake a merit review of the entire selection process against the criteria set out under the applicable laws.
It is his case that the petitioners have neither demonstrated that they have a strong case with a likelihood of success, nor shown that they will suffer irreparable harm that could not be remedied if the approval process is allowed to proceed.
“Granting conservatory orders to halt the ongoing approval process will affect the constitutional rights of public participation and fair hearing for the various members of the public, who have sent memoranda to the Committee on Justice and Legal Affairs challenging the selection of the nominees to the IEBC. This is clearly not in the public interest,” argues Mr Ndombi in an affidavit.
Through lawyer Josphat Kuiyoni, the National Assembly says existence of the injunction stands to defeat the purpose of the approval process and also amount to a violation of the Constitution by occasioning deemed approvals of the nominees without public or parliamentary scrutiny.
The lawyer says the court lacks authority to interfere in active parliamentary processes, which are still underway.
More so, where there are strict prescribed constitutional and statutory timelines for the carrying out and completion of such processes.
“In this case, the National Assembly’s Departmental Committee of Justice & Legal Affairs, having started the process of carrying out its approval hearings in respect of the seven IEBC nominees, the court lacks jurisdiction to interfere in the said process, especially since the Public Appointments (Parliamentary Approval) Act, 2011 has prescribed a maximum of 28 days for the National Assembly to carry out and conclude the said process,” argues the lawyer.
