Independent Electoral and Boundaries Commission Act 2011

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The Independent Electrol and Boundaries Commission Act, 2011 governs the internal and administrative operations of the IEBC.
The external operations and powers of this commission are to be found mainly in the Elections Act.

As copied from kenyalaw.org on Aug. 28, 2016

PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Independent Electoral and Boundaries Commission Act, 2011.

2.
Interpretation
(1)

In this Act, unless the context otherwise requires—

“Cabinet Secretary” means the Cabinet Secretary appointed under Article 152 of the Constitution;
“chairperson” means the chairperson of the Commission appointed in accordance with Article 250(2) of the Constitution;
“Commission” means the Independent Electoral and Boundaries Commission established by Article 88 of the Constitution;
“first review” means the review conducted by the former Boundaries Commission taking into account any outstanding work of that Commission and issues arising from that review;
“former Boundaries Commission” means the Interim Independent Boundaries Review Commission established under section 41B of the former Constitution;
“former Constitution” means the Constitution in force immediately before the 27th of August, 2010;
“Fund” means the Independent Electoral and Boundaries Commission Fund established by section 18;
“issues arising” means the issues specified in paragraph 1 of the Fifth Schedule;
“member” means a member of the Commission and includes the chairperson;
“Parliamentary Committee” means the relevant Departmental Committee of the National Assembly responsible for matters relating to the Commission;
“principal office” means the headquarters of the Commission;
“Registrar of Persons” means the office in charge of identification, registration and issuance of identity cards to all Kenyan citizens;
“Salaries and Remuneration Commission” means the Salaries and Remuneration Commission established under Article 230(1) of the Constitution;
“secretary” means the secretary to the Commission appointed under Article 250(12) of the Constitution;
“vice-chairperson” means the vice-chairperson of the Commission elected under Article 250(10) of the Constitution.
(2)

Despite subsection (1), until after the first election under the Constitution, references in this Act to the expression “Cabinet Secretary” shall be construed to mean “Minister”.

3.
Object and purpose of the Act

The object and purpose of this Act is to—

(a)

provide for the operations, powers, responsibilities and functions of the Commission to supervise elections and referenda at County and National government levels;

(b)

provide a legal framework for the identification and appointment of the chairperson, members and the secretary of the Commission pursuant to Article (12)(b) and 250(2) of the Constitution;

(c)

provide for the manner of the exercise of the powers, responsibilities and functions of the Commission pursuant to Article 88(5) of the Constitution;

(d)

establish mechanisms for the Commission to facilitate consultations with interested parties pursuant to Article 89(7) of the Constitution; and

(e)

establish mechanisms for the Commission to address the issues arising out of the first review.

PART II – ADMINISTRATION
4.
Functions of the Commission

As provided for by Article 88(4) of the Constitution, the Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—

(a)

the continuous registration of citizens as voters;

(b)

the regular revision of the voters’ roll;

(c)

the delimitation of constituencies and wards in accordance with the Constitution;

(d)

the regulation of the process by which parties nominate candidates for elections;

(e)

the settlement of electoral disputes, including disputes relating to or arising from nominations, but excluding election petitions and disputes subsequent to the declaration of election results;

(f)

the registration of candidates for election;

(g)

voter education;

(h)

the facilitation of the observation, monitoring and evaluation of elections;

(i)

the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;

(j)

the development and enforcement of a code of conduct for candidates and parties contesting elections;

(k)

the monitoring of compliance with the legislation required by Article 82(1)(b) of the Constitution relating to nomination of candidates by parties;

(l)

the investigation and prosecution of electoral offences by candidates, political parties or their agents pursuant to Article 157(12) of the Constitution;

(m)

the use of appropriate technology and approaches in the performance of its functions; and

(n)

such other functions as are provided for by the Constitution or any other written law.

5.
Composition and appointment of the Commission
(1)

The Commission shall consist of a chairperson and eight other members appointed in accordance with Article 250(4) of the Constitution and the provisions of this Act.

(2)

Subject to section 35, the chairperson and members of the Commission shall be appointed in accordance with the procedure set out in the First Schedule.

(3)

The procedure set out in the First Schedule shall apply, with the necessary modifications, whenever there is a vacancy in the Commission.

(4)

The chairperson and members of the Commission shall perform their functions as provided in the Constitution, and the secretariat shall perform the day to day administrative functions of the Commission.

6.
Qualifications for appointment as chairperson or member of the Commission
(1)

The chairperson of the Commission shall be a person who is qualified to hold the office of judge of the Supreme Court under the Constitution.

(2)

A person is qualified for appointment as a member of the Commission if such person—

(a)

is a citizen of Kenya;

(b)

holds a degree from a recognised university;

(c)

has proven relevant experience in any of the following fields—

(i) electoral matters;
(ii) management;
(iii) finance;
(iv) governance;
(v) public administration;
(vi) law; and
(d)

meets the requirements of Chapter Six of the Constitution.

7.
Term of office
(1)

The members of the Commission shall be appointed for a single term of six years and shall not be eligible for re-appointment.

(2)

The members of the Commission shall serve on a full-time basis.

(3)

The Commission shall be properly constituted notwithstanding a vacancy in its membership.

8.
Conduct of business and affairs of the Commission

The conduct and regulation of the business and affairs of the Commission shall be as provided for in the Second Schedule but subject thereto, the Commission may regulate its own procedure.

9.
Oath of office

The chairperson and members shall, before assuming office, take and subscribe to the oath or affirmation of office prescribed in the Second Schedule.

10.
Secretary to the Commission
(1)

The Commission shall, through an open, transparent and competitive recruitment process, appoint a suitably qualified person to be the secretary to the Commission.

(2)

A person shall be qualified for appointment as the secretary if the person—

(a)

is a citizen of Kenya;

(b)

possesses a degree from a recognised university;

(c)

has had at least five years’ proven experience at management level;

(d)

has proven relevant experience in either—

(i) electoral matters;
(ii) management;
(iii) finance;
(iv) governance;
(v) public administration;
(vi) law; or
(vii) political science; and
(e)

meets the requirements of Chapter Six of the Constitution.

(3)

The secretary shall, before assuming office, take and subscribe to the oath or affirmation of office prescribed in the Third Schedule.

(4)

The secretary shall hold office for a term of five years but shall be eligible for re-appointment for one further term of five years.

(5)

Where the Commission does not intend to reappoint the secretary, the Commission shall notify the secretary and shall cause the vacancy to be advertised at least three months before the expiry of the incumbent’s term.

(6)

The secretary shall, in the performance of the functions and duties of office, be responsible, answerable and report to the Commission.

(7)

The secretary shall be—

(a)

the chief executive officer of the Commission;

(b)

head of the secretariat;

(c)

the accounting officer of the Commission;

(d)

custodian of all commission’s records;

(e)

responsible for—

(i) executing decisions of the Commission;
(ii) assignment of duties and supervision of all employees of the Commission;
(iii) facilitating, co-ordinating and ensuring execution of Commission’s mandate;
(iv) ensuring staff compliance with public ethics and values; and
(v) the performance of such other duties as may be assigned by the law and Commission.
(8)

The secretary may only be removed from office by the Commission on grounds of—

(a)

inability to perform functions of the office arising out of physical or mental incapacity;

(b)

gross misconduct;

(c)

bankruptcy; or

(d)

incompetence.

(9)

Before removal under subsection (8), the secretary shall be—

(a)

informed in writing of the reasons for the intended removal;

(b)

given an opportunity to put in a defence against any such allegations, either in person or through an advocate.

11.
Employees of the Commission
(1)

There shall be a secretariat of the Commission which shall be headed by the secretary.

(2)

The secretariat shall comprise of—

(a)

such professional, technical and administrative officers and support staff, as may be appointed by the Commission in the discharge of its functions under this Act; and

(b)

such public officers as may be seconded to the Commission upon its request.

(3)

The employees of the Commission may be appointed, subject to its approved establishment.

(4)

For purposes of this Act, a public officer who is seconded to the Commission under subsection (2)(b), shall be deemed to be an employee of the Commission and shall enjoy the same benefits and shall be required to comply with the Constitution, this Act and any other written law relating to elections and any instruction, orders and directions of the Commission in the same manner as an employee recruited directly by the Commission under this Act.

(5)

The Commission shall ensure that in the appointment of employees, not more than two-thirds of the employees of the Commission shall be of the same gender and that the following are also taken into account—

(a)

persons with disabilities; and

(b)

regional and other diversity of the people of Kenya.

12.
Units of the Commission
(1)

The Commission may create within itself such directorates, field offices, units, divisions or committees and appoint thereto such employees as it may determine.

(2)

Every directorate, field office, unit, division or committee created by the Commission shall act in accordance with the mandate approved by the Commission and directives given in writing by the secretary.

13.
Legal personality of the Commission
(1)

The Commission shall be a body corporate with perpetual succession and a common seal and shall be capable, in its own name, of—

(a)

acquiring, holding and disposing of movable and immovable property;

(b)

suing and being sued; and

(c)

doing or performing all such acts and things as a body corporate may by law do or perform.

(2)

Any legal proceedings for execution of judgments against the Commission shall be subject to the Government Proceedings Act (Cap. 40).

14.
Seal of the Commission
(1)

The seal of the Commission shall be such device as may be determined by the Commission and shall be kept by the secretary.

(2)

The affixing of the seal shall be authenticated by the chairperson and the secretary or any other person authorised in that behalf by a resolution of the Commission.

(3)

Any document purporting to be under the seal of the Commission or issued on behalf of the Commission shall be received in evidence and shall be deemed to be so executed or issued, as the case may be, without further proof, unless the contrary is proved.

15.
Protection from personal liability

Nothing done by a member of the Commission or by any electoral officer shall, if done in good faith for the purpose of executing the powers, functions or duties of the Commission under the Constitution or this Act, render such member or officer personally liable for any action, claim or demand.

16.
Code of conduct

Members and the employees of the Commission shall subscribe to the code of conduct prescribed under the Fourth Schedule.

PART III – FINANCIAL PROVISIONS
17.
Funds of the Commission

The funds of the Commission shall consist of—

(a)

monies allocated by Parliament for purposes of the Commission;

(b)

any grants, gifts, donations or other endowments given to the Commission;

(c)

such funds as may vest in or accrue to the Commission in the performance of its functions under this Act or under any other written law.

18.
Independent Electoral and Boundaries Commission Fund
(1)

The funds of the Commission shall be held in a fund to be known as the Independent Electoral and Boundaries Commission Fund which shall be administered, on behalf of the Commission, by the secretary.

(2)

There shall be paid from the Fund—

(a)

the salaries, allowances and other remuneration of the employees of the Commission;

(b)

such other remuneration to persons in its service as it may consider appropriate;

(c)

such reasonable travelling and subsistence allowances for the employees and members of any committee of the Commission when engaged in the business of the Commission, and at such rates as may be approved by the Salaries and Remuneration Commission;

(d)

any other operational and other expenses incurred by the Commission in the performance of its functions.

(3)

The secretary shall manage the Fund subject to the provisions of all laws and regulations relating to public financial management.

19.
Expenses of the Commission to be a charge on the Consolidated Fund

The administrative and other expenses of the Commission, including the salaries, allowances, gratuities and pensions of the members and employees of the Commission shall be a charge on the Consolidated Fund.

20.
Remuneration and allowances
(1)

Members of the Commission shall be paid such remuneration or allowances as the Salaries and Remuneration Commission shall determine.

(2)

Pending the establishment of the Salaries and Remuneration Commission, the remuneration and allowances under subsection (1) shall be determined by the Public Service Commission in consultation with the Treasury.

21.
Annual estimates
(1)

Before the commencement of each financial year, the secretary with the approval of the Commission, shall cause to be prepared estimates of the revenue and expenditure of the Commission for that year.

(2)

The Cabinet Secretary responsible for finance shall present the estimates approved by the Commission for consideration and approval by the National Assembly.

22.
Financial year of the Commission

The financial year of the Commission shall be the period of twelve months ending on the thirtieth June in each year.

23.
Accounts and audit
(1)

The Commission shall cause to be kept all proper books and records of account of the income, expenditure and assets of the Commission.

(2)

Within a period of three months after the end of each financial year, the Commission shall submit to the Auditor-General, the accounts of the Commission together with—

(a)

a statement of the income and expenditure of the Commission during that year; and

(b)

a statement of the assets and liabilities of the Commission on the last day of that year.

(3)

All accounts kept under this Act shall be audited by the Auditor-General at least once in every financial year.

(4)

The Commission shall be entitled, upon application to the Cabinet Secretary responsible for finance, to exemption from duty chargeable under the Stamp Duty Act (Cap. 480) in respect of any instrument executed by or on behalf of, or in favour of the Commission which, but for this section, the Commission would be liable to pay.

(5)

The Commission may establish, control, manage, maintain and contribute to pension and provident funds for the benefit of the members and employees of the Commission and may grant pensions and gratuities from any such fund to the said officers upon their resignation, retirement or separation from the service of the Commission or, as the case may be, to the dependants of any such officer upon such officer’s death.

24.
Annual report
(1)

Within three months after the end of each financial year, the Commission shall present its annual report to the President and submit the same to Parliament.

(2)

The annual report shall in respect of the year to which it relates, contain—

(a)

the financial statements of the Commission;

(b)

the activities the Commission has undertaken; and

(c)

any other information, the Commission may consider relevant.

(3)

The Commission shall publish the annual report in the Gazette and in at least one newspaper of national circulation.

PART IV – MISCELLANEOUS PROVISIONS
25.
General principles

In fulfilling its mandate, the Commission shall, in accordance with the Constitution, observe the following principles—

(a)

freedom of citizens to exercise their political rights under Article 38 of the Constitution;

(b)

not more than two-thirds of the members of elective public bodies shall be of the same gender;

(c)

fair representation of persons with disabilities and other persons or groups with special needs;

(d)

universal and equal suffrage based on the aspiration for fair representation and equality of votes;

(e)

free and fair elections, which are—

(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or corruption;
(iii) conducted independently;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate and accountable manner;
(f)

undertake elections on a regular basis in accordance with the Constitution;

(g)

ethical conduct; and

(h)

fairness.

26.
Independence of the Commission

Except as provided in the Constitution, the Commission shall, in the performance of its functions, not be subject to the direction or control of any person or authority but shall observe the principle of public participation and the requirement for consultation with stakeholders.

27.
Management of information
(1)

The Commission shall publish and publicise all important information within its mandate affecting the nation.

(2)

A request for information in the public interest by a citizen—

(a)

shall be addressed to the secretary or such other person as the Commission may for that purpose designate and may be subject to the payment of a reasonable fee in instances where the Commission incurs an expense in providing the information; and

(b)

may be subject to confidentiality requirements of the Commission.

(3)

Subject to Article 35 of the Constitution, the Commission may decline to give information to an applicant where—

(a)

the request is unreasonable in the circumstances;

(b)

the information requested is at a deliberative stage by the Commission;

(c)

failure of payment of the prescribed fee; or

(d)

the applicant fails to satisfy any confidentiality requirements by the Commission.

(4)

The right of access to information under Article 35 of the Constitution shall be limited to the nature and extent specified under this section.

(5)

Every member and employee of the Commission shall sign a confidentiality agreement.

28.
Publicity

The Commission shall, in such manner as it considers appropriate, publish a notice for public information specifying—

(a)

the location of all its offices; and

(b)

its address or addresses, telephone numbers and other means of communication or contact with the Commission.

29.
Legal advice

The Commission may request legal advice from the Attorney-General.

30.
Offences
(1)

A member or employee of the Commission who knowingly subverts the process of free and fair elections or who knowingly obstructs the Commission in the discharge of its functions or otherwise interferes with the functions of the Commission commits an offence and is liable, on conviction, to a term of imprisonment not exceeding three years or to a fine of not more than one million shillings or to both.

(2)

A person who is convicted of an offence under subsection (1) shall not be eligible to hold public office for a period of ten years following the conviction.

31.
Regulations
(1)

The Commission may make regulations for the better carrying out of the provisions of this Act.

(2)

Without prejudice to the generality of subsection (1), such regulations may provide for—

(a)

the appointment, including the power to confirm appointments of persons, to any office in respect of which the Commission is responsible under this Act;

(b)

the disciplinary control of persons holding or acting in any office in respect of which the Commission is responsible under this Act;

(c)

the termination of appointments and the removal of persons from any office, in respect of which the Commission is responsible under this Act;

(d)

the practice and procedure of the Commission in the exercise of its functions under this Act;

(e)

the progressive registration of Kenyan citizens residing outside Kenya and putting into effect the progressive realisation of their right to vote;

(f)

the delegation of the Commission’s functions or powers; and

(g)

any other matter required under the Constitution, this Act or any other written law.

(3)

The purpose and objective for making the rules and regulations under subsection (1) is to enable the Commission to effectively discharge its mandate under the Constitution and this Act.

PART V – SAVINGS AND TRANSITIONAL PROVISIONS
32.
Interpretation of Part

In this Part, unless the context otherwise requires—

“Commission” means the Independent Electoral and Boundaries Commission established by Article 88 of the Constitution;
“first Commission” means the Commission first appointed under this Act;
“former Boundaries Commission” means the Interim Independent Boundaries Review Commission established under section 41B of the former Constitution;
“former Constitution” means the Constitution in force immediately before the 27th of August, 2010;
“former Electoral Commission” means the Interim Independent Electoral Commission established under section 41 of the former Constitution;
“Parliamentary Committee” means the relevant departmental Committee of the National Assembly responsible for matters relating to the Commission.
33.
Transition
(1)

The former Electoral Commission shall continue in office in terms of section 28(1) and (2) of the Sixth Schedule to the Constitution.

(2)

A person who immediately before the commencement of this Act was an officer of the former Electoral Commission may, subject to the provisions of the Constitution, this Act and any other relevant law, be an officer of the Commission.

(3)

A person who served as an officer of the former Boundaries Commission may be eligible, subject to the staff establishment of the Commission, for employment by the Commission.

34.
Transfer of assets, etc.
(1)

All property, assets, rights, liabilities, obligations, agreements and other arrangements existing at the commencement of this Act and vested in, acquired, incurred or entered into by or on behalf of the former Electoral Commission or the former Boundaries Commission shall upon the commencement of this Act, be deemed to have vested in or to have been acquired, incurred or entered into by or on behalf of the Commission to the same extent as they were enforceable by or against either of the former Commissions before the commencement of the Act.

(2)

Where the transfer of any property transferred to or vested in the Commission under subsection (1) is required by any written law to be registered, the Commission shall, within three months from the commencement of this Act or within such other period as the written law may prescribe, apply to the appropriate registering authority for the registration of the transfer and thereupon the registering authority shall, at no cost to the Commission or any person by way of registration fees, stamp or other duties—

(a)

make such entries in the appropriate register as shall give effect to the transfer;

(b)

where appropriate, issue to the Commission a certificate of title or other statutory evidence of ownership of the property or make such amendments on such certificates or in the appropriate register as may be necessary; and

(c)

make any necessary endorsements on such deeds or other documents as may be presented to such registering authority relating to the title, right or obligation concerned.

35.
Appointment of the first Commission
(1)

For purposes of the appointment of the first Commission under this Act, the Selection Panel shall have regard to the provisions of section 28(2) of the Sixth Schedule to the Constitution and in accordance with the procedure set out in the First Schedule to this Act.

(2)

This section shall lapse upon the appointment of the first Commission under this Act.

36.
Delimitation during first review
(1)

The provisions of the Fifth Schedule shall have effect for the purposes of addressing issues arising from first review.

(2)

This section shall lapse upon the gazettement of the final report in accordance with the Fifth Schedule.