Point in Time
Act No: No. 9 of 2011
Act Title: INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION
[ Date of commencement: 5th July, 2011. ]
[ Date of assent: 5th July, 2011. ]
Arrangement of Sections
PART 1 — PRELIMINARY
1.
Short title

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

PART II – ADMINISTRATION
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.

7B.
Absence of chairperson [This section was declared Unconstitutional by Constitutional Petition No. 548 of 2017]
(1)

Whenever the chairperson is absent, the vice-chairperson shall assume the duties of the chairperson and exercise the powers and responsibilities of the chairperson.

(2)

Whenever the chairperson and the vice-chairperson are absent, members of the Commission shall elect from amongst themselves a member to act as the chairperson and exercise the powers and responsibilities of the chairperson.

(3)

The provisions of section 6(1) shall not apply to the vice-chairperson or a member acting as chairperson under this section.

[Act No. 34 of 2017, s. 3A.]

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.

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.

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.

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

In this Act, 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.

FIRST SCHEDULE [Section 5, Act No. 12 of 2012, Sch., Act No. 36 of 2016, 38.]

PROCEDURE FOR APPOINTMENT OF CHAIRPERSON AND MEMBERS OF THE COMMISSION

SECOND SCHEDULE [Section 8, Act No. 1 of 2017, Section 4, Act No. 34 of 2017.]

PROVISIONS AS TO THE CONDUCT OF THE BUSINESS AND AFFAIRS OF THE COMMISSION

1.

The Commission shall meet as often as may be necessary for the carrying out of its business but it shall meet at least once every calendar month.

2.

A meeting of the Commission shall be held on such date and at such time as the chairperson shall decide.

3.

The chairperson shall, on the written application of one-third of the members, convene a special meeting of the Commission.

4.

Unless the majority of the total membership of the Commission otherwise agree, at least fourteen days’ written notice of every meeting of the Commission shall be given to every member of the Commission.

6.

The chairperson shall preside at every meeting of the Commission at which he is present and in the absence of the chairperson at a meeting, the vice-chairperson, shall preside and in the absence of both the chairperson and the vice-chairperson, the members present shall elect one of their number who shall, with respect to that meeting and the business transacted thereat, have all the powers of the chairperson.

8.

Subject to paragraph 5, no proceedings of the Commission shall be invalid by reason only of a vacancy among the members thereof.

10.

The Commission shall cause minutes of all proceedings of meetings of the Commission to be entered in books for that purpose.

11.

Except as provided by this Schedule, the Commission may regulate its own procedure.

12.

(1) If any person is present at a meeting of the Commission or any committee at which any matter is the subject of consideration and in which matter that person or that directly or indirectly interested in a private capacity, that person shall as soon as is practicable after the commencement of the meeting, declare such interest and shall not, unless the Commission or committee otherwise directs, take part in any consideration or discussion of, or vote on any question touching such matter.

(2)

A disclosure of interest made under subsection (1) shall be recorded in the minutes of the meeting at which it is made.

(3)

A person who contravenes subsection (1) commits an offence and upon conviction is liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding seven years or to both such fine and imprisonment.

(4)

A member or employee of the Commission shall not transact any business or trade with the Commission.

THIRD SCHEDULE [Section 10(3).]
OATH OF OFFICE/SOLEMN AFFIRMATION OF CHAIRPERSON/MEMBER/SECRETARY OF THE COMMISSION/SELECTION PANEL

I, ..................................................................................................... having been appointed (the chairperson/member of/secretary to) the Independent Electoral and Boundaries Commission/Selection Panel do solemnly (swear/declare and affirm) that I will at all times obey, respect and uphold the Constitution of Kenya and all other laws of the Republic; that I will faithfully and fully, impartially and to the best of my ability, discharge the trust and perform the functions and exercise the powers devolving upon me by virtue of this appointment without fear, favour, bias, affection, ill-will or prejudice.

(So Help me God).

Sworn/declared by the said ..............................................................

Before me this .......................... day of .............................................

............................................

Chief Justice

FOURTH SCHEDULE [Section 16.]

CODE OF CONDUCT FOR MEMBERS AND EMPLOYEES OF THE COMMISSION

1.
Impartiality and independence of members
(1)

Every member and employee of the Commission shall impartially and independently perform the functions of the Commission in good faith and without fear, favour or prejudice, and without influence from—

(a)

any arm of the Government;

(b)

any State officer;

(c)

any public officer;

(d)

any political party;

(e)

candidate participating in an election; or

(f)

any other person, authority or organisation.

(2)

The provisions of subparagraph (1) shall apply withouvt prejudice to the principle of public participation and requirement for consultation with all stakeholders.

2.
Independence from political or public office
(1)

A member or employee of the Commission shall not, during tenure of office be eligible for—

(a)

appointment or nomination to a political office; or

(b)

appointment to another public office.

(2)

A member of the Commission may not—

(a)

whether directly or indirectly, in any manner support or oppose any party or candidate participating in an election or any side participating in a referendum, or any of the issues in contention between parties, candidates or sides;

(b)

make private use of or profit from any confidential information gained as a result of being a member of the Commission; or

(c)

divulge any information to any third party, save in the course of official duty.

3.
Disclosure of conflicting interests
(1)

If a member or an employee is directly or indirectly interested in any contract, proposed contract or other matter before the Commission and is present at any meeting of the Commission at which the contract, proposed contract or other matter is the subject of consideration, the member or employee shall, at the meeting and as soon as practicable after the commencement thereof, disclose the fact and shall not take part in the consideration or discussion of, or vote on, any questions with respect to the contract or other matter or be counted in the quorum of the meeting during consideration of the matter.

(2)

A member or employee whose personal interest conflicts with their official duties shall—

(a)

in writing, declare the personal interests to their supervisor or other appropriate person or body and comply with any directions given to avoid the conflict; and

(b)

refrain from participating in any deliberations with respect to the matter.

4.
Professionalism

A member or employee of the Commission shall—

(a)

perform their duties in a manner that maintains public confidence in the Commission;

(b)

treat the public and colleagues with courtesy and respect;

(c)

discharge all their duties in a professional, timely and efficient manner and in line with the rule of law; and

(d)

respect the rights and freedom of all persons that he may interact with.

5.
Improper enrichment

A member or employee of the Commission shall not—

(a)

use their office or organisation to improperly enrich themselves or others;

(b)

accept or request gifts or favours from any person who may have a commercial interest with the Commission or any other interest that may be affected by the normal business of the Commission; or

(c)

use information that is acquired during the course of their duties or connected to their duties for their benefit or for the benefit of others.

6.
Integrity in private affairs

A member or employee shall conduct their private affairs in a manner that maintains public confidence in the integrity of their office and the Commission as a whole and shall—

(a)

not evade paying taxes;

(b)

not neglect their financial obligations;

(c)

submit an annual declaration of their income, assets and liabilities to the Commission responsible for such declarations from public officers;

(d)

not engage in political activity that may compromise or be seen to compromise the neutrality of their office, or the Commission; and

(e)

not preside over or play a central role in the organisation of a fundraising activity.

7.
Sexual harassment

A member or employee shall not sexually harass a member of the public or colleague. Sexual harassment includes—

(a)

making a request or exerting pressure for sexual activity or favours;

(b)

making intentional or careless physical contact that is sexual in nature; or

(c)

making gestures, jokes or comments, including innuendoes regarding another person’s sexuality.

8.
Nepotism

A member or employee shall not practice favouritism on the grounds of tribe, race, kin, culture, sex or acquaintance or otherwise in performance of their duties.

9.
Privileged information and security of interests of the State

A member or employee shall—

(a)

not act for foreigners in a manner detrimental to the security interest of Kenya; and

(b)

safeguard privileged information that comes into their possession and protect it from improper or inadvertent disclosure.

10.
Application of the Public Officers Ethics Act

This Code is in addition to the provisions of the Public Officers Ethics Act and where there is a conflict between the Code and the Act, the provisions of the Act shall prevail.

11.
Breach of code

Any breach of the Code by a member or an officer of the Commission shall be treated as misbehaviour for a member and misconduct for an officer.

FIFTH SCHEDULE [Section 36, Act No. 12 of 2012, Sch.]

PROVISIONS RELATING TO THE FIRST REVIEW

1.
Resolution of issues arising from the first review

The Commission shall resolve all issues arising from the first review relating to the delimitation of boundaries of constituencies and wards and publish its final report within a period of four months of the date of its appointment under this Act.

2.
Reference materials
(1)

The Commission shall, in addressing the issues arising out of the firstreview—

(a)

use as its primary reference material the report of the former Boundaries Commission on the first review as adopted by the National Assembly; and

(b)

use as its secondary reference material the report of the Parliamentary Committee on the report of the former Boundaries Commission on the first review.

(2)

The issues arising out of the first review are—

(a)

re-distribution of such wards or administrative units in the affected constituencies as may be appropriate;

(b)

subject to the Constitution, addressing issues of new constituencies falling outside the population quota as provided for by Article 89(6) of the Constitution but at the same time ensuring that such a process shall—

(i) take into account the provisions of Article 89 (7)(b) of the Constitution that requires progressive efforts and not instant demographic equality of all towards attaining the population quota in each constituency and ward for the purposes of the first review;
(ii) not be subject to new definitions of cities, urban areas and sparsely populated areas or to new population figures;
(iii) be subject to the use of enumerated national census figures and not projected figures.
(c)

addressing the issue of progressively advancing towards the population quota in protected constituencies in relation to neighbouring constituencies where appropriate.

3.
Delimitation of electoral units
(1)

The Commission shall prepare and publish a preliminary report outlining—

(a)

the proposed delimitation of boundaries for constituencies and wards; and

(b)

the specific geographical and demographical details relating to such delimitation.

(2)

The Commission shall ensure that the preliminary report is made available to the public for a period of twenty-one days and invite representations from the public on the proposals contained in the report during that period.

(3)

Upon the expiry of the period provided in subparagraph (2), the Commission shall, within fourteen days, review the proposed delimitation of boundaries considering the views received under that subparagraph and submit the revised preliminary report of proposed boundaries to the Parliamentary Committee.

(4)

The Parliamentary Committee shall, within fourteen days of receipt of the revised preliminary report under subparagraph (3), table the revised preliminary report to the National Assembly together with its recommendations.

(5)

The National Assembly shall, within seven days of the tabling of the revised preliminary report, consider the revised report and forward its resolutions to the Commission.

(6)

Within fourteen days of the expiry of the period provided for in subparagraph (5), the Commission shall, taking into account the resolutions of the National Assembly under subparagraph (5), prepare and submit its final report outlining the matters set out in subparagraph (1)(a) for publication in the Gazette.

(7)

Where the National Assembly fails to make a resolution within the period specified in subparagraph (5), the Commission shall proceed to publish its report in accordance with subparagraph (6).

(8)

Any person who, being responsible for the publication in the Gazette of the final report submitted under this paragraph fails to publish the report within the time required by the Commission after the report has been submitted to that person, commits an offence and is liable to imprisonment for a term of one year.

(9)

Notwithstanding any other written law, where the final report is not published in accordance with the provisions of subparagraph (6) the Commission shall, within seven days of the submission of the said report, cause the report to be published in at least two dailies of national circulation and such publication shall have effect as if it were done in the Gazette.

4.
Review of decision of Commission

A person may apply to the High Court for review of a decision of the Commission made under the Constitution and this Act.

6.
Sensitisation on the proposed boundaries

The Commission shall, upon publication of the boundaries referred to in paragraph 3 facilitate sensitisation of the public on the boundaries for a period of thirty days.

9.
Maintenance of records

The Commission shall ensure that all documents, materials, publications, reports and recommendations arising from the delimitation process are maintained in a form that is accessible and usable by members of the public.