The Independent Electoral and Boundaries Commission (IEBC) has moved to resolve the stalemate over who should replace Treasury Cabinet Secretary John Mbadi in the National Assembly, settling on former nominated Senator Harold Kipchumba.
The Commission cited Section 37 of the Elections Act as the legal basis for its decision, clarifying that replacements for party list nominees must be based on gender and not professional qualifications, as had been suggested by some politicians within the Orange Democratic Movement (ODM).
In a letter dated August 23, IEBC Legal Director Chrispine Owiye, writing on behalf of CEO Hussein Marjan, explained that the replacement must be the next available nominee of the same gender from the party’s 2022 list. Kipchumba, who was listed fourth on the ODM nomination list, becomes the logical successor to Mbadi under this rule.
“If a representative from a political party list dies, withdraws, changes parties, resigns, or is expelled during the term, the seat shall be allocated to the next candidate of the same gender on the party list,” Owiye stated, quoting Section 37 of the Act.
This response was directed to Ibrahim, Isaac and Co. Advocates, who had written to the IEBC on August 1 on behalf of ODM, seeking clarification on the nomination process. A similar notification had also been sent to National Assembly Speaker Moses Wetang’ula and ODM Secretary General Edwin Sifuna.
On August 14, Speaker Wetang’ula formally declared Mbadi’s seat vacant and requested the IEBC to begin the process of gazettement.
While acknowledging receipt of the letter on August 16, CEO Marjan noted that the Commission was currently unable to proceed with the reallocation due to a lack of quorum—stemming from the absence of both the IEBC chairperson and commissioners.
“Kindly note that we may not be in a position to process the request to fill the vacancy within the legal timeliness,” Marjan stated in his response.
Despite the delay, the Commission’s position on the gender requirement offered a major indication that Kipchumba, a male nominee representing persons with disabilities (PWD), would ultimately succeed Mbadi.
The decision, however, sparked internal jostling within ODM. Some party insiders had lobbied for youth representative John Antira Ketora, who was placed eighth on the same nomination list and had been backed by a section of the ODM youth league. However, his chances were dimmed by the legal requirement that the replacement must be of the same gender as the outgoing member.
Both Kipchumba and Ketora had previously appeared on ODM party lists. Kipchumba was a nominated senator in the 11th Parliament but lost the seat after the High Court annulled his nomination, leading to his replacement by the late Godliver Omondi. In 2017, Kipchumba also missed out on nomination as Isaac Mwaura, now the government spokesperson, secured the PWD slot.
Legal experts now warn that the IEBC’s interpretation of the succession law could face a court challenge, potentially delaying the final gazettement of Kipchumba’s name.
For now, the Commission maintains that its hands are tied until a new chairperson and commissioners are appointed to allow the body to meet quorum and proceed with the formal reallocation.
