A city lawyer and two youths have petitioned the High Court seeking to halt the ongoing recruitment process for the Independent Electoral and Boundaries Commission (IEBC).
The petitioners argue the ongoing recruitment process, which seeks to fill vacancies for the positions of Chairperson and Members of the IEBC, is discriminatory and unconstitutional.
Advocate Dickson Morara Omoke, Moses Kidi Odasia Mwaga and Angela Mbuthia, are calling for a review of the process, citing violations of fundamental rights and the exclusion of qualified young applicants from the shortlist.
“Section 6(2)(c) of the IEBC Act, which requires candidates for the position of IEBC members to have at least 10 years of experience in specific fields indirectly discriminates against the youth by setting overly high requirements for experience,” the court papers states
They argue that the recruitment procedures are flawed and discriminatory, particularly against young people and marginalized groups.
Further, the petitioners contends that the selection panel’s approach to shortlisting candidates for the IEBC positions violates fundamental rights guaranteed under Articles 27, 35, and 47 of the Constitution of Kenya.
These rights include non-discrimination, access to information, and the right to a fair and transparent process.
Moses Kidi Odasia Mwaga, the convener of the Inter Partes Youth Forum and a key petitioner, expressed his frustration at the exclusion of young people from the IEBC selection process.
“We are advocating for inclusion of the youth in key positions of national importance,” he said.
“The recruitment process as it stands is not only discriminatory but also excludes qualified young people who can contribute meaningfully to our electoral system.”
The case revolves around the recruitment process launched by the Selection Panel for the IEBC positions, which began with a gazette notice on March 1, 2023.
This notice invited applications for the position of chairperson and six other members.
However, despite numerous applications, the petitioners claim that the process has been marred by opacity, exclusion of qualified youth, and the presence of state officers who should have been disqualified based on their current government positions.
One of the petitioners, Angela Mbuthia, chairperson of the Jubilee Youth League, noted the exclusion of youth in the shortlisted candidates for the position of IEBC members.
“The law is clear that youth must be given opportunities to serve in the public sector,” she said.
“However, the Selection Panel’s report shows no youth representation in a process that should have embraced the diversity of our nation, including our young generation.”
The petitioners also highlight what they consider discrepancies in the shortlisting process.
They argue that some of the shortlisted candidates are still holding state office, contrary to the provisions of the Constitution, which bars individuals holding state offices from being appointed to the IEBC.
Notably, the petitioners pointed out that individuals such as Justice Charles Ayako Nyachae, who serves as the Chairperson of the Kenya School of Government, and Ms. Joy Mdivo, who holds a position at the Kenya Power and Lighting Company, remain on the shortlist despite their state roles.
The three have taken the legal route in response to concerns over the transparency, fairness, and inclusivity of the recruitment process, which they argue fails to meet the constitutional standards of equity and representation.
“The process of selecting IEBC members should be open, meritocratic, and inclusive. The exclusion of young, qualified individuals, and the inclusion of state officers, undermines the integrity of the process and the Constitution,” lawyer Omoke says
The case also revolves around Section 6(2)(c) of the Independent Electoral and Boundaries Commission (IEBC) Act, which sets out stringent experience requirements for applicants.
The petitioners argue that the law discriminates against the youth by setting a high threshold for experience of 10 years, effectively sidelining younger candidates who possess the necessary qualifications but lack the years of experience stipulated in the act.
“It is unjust and unconstitutional to exclude a whole generation of youth from such important national processes,” said lawyer Omoke, who also applied for a position on the IEBC panel but was left off the shortlist.
“We meet the qualifications, but the system places us at a disadvantage simply because we are young.”
In their petition, the youth and the lawyer seek several remedies, including a declaration that Section 6(2)(c) of the IEBC Act is unconstitutional and a review of the recruitment procedures.
The petitioners have requested the High Court to declare that the IEBC recruitment procedures are unconstitutional, opaque, discriminatory, and unrepresentative.
They are seeking other several remedies, including an order compelling the Selection Panel to re-advertise the positions and conduct a fresh recruitment process that adheres to the Constitution.
They are calling for the Selection Panel to include youthful candidates in the process and for a transparent overhaul of the recruitment system to align with constitutional principles such as inclusion, equality, and merit.
The petitioners further argue that the recruitment process is in violation of Article 35(1) of the Constitution, which guarantees citizens the right to access information held by the State.
The failure of the Selection Panel to provide information regarding the employment status of some shortlisted candidates, they argue, is a breach of this right.
At the heart of this legal battle is the principle of youth inclusion, which is enshrined in the Constitution of Kenya under Article 55.
This article mandates the State to take steps to ensure that youth are given opportunities to participate in political, economic, and social spheres.
The petitioners contend that the recruitment process for the IEBC should reflect this constitutional commitment to youth inclusion and representation.
The case is pending hearing
