Chama Cha Mawakili (CCM) v Chairperson Independent Electoral and Boundaries Commission & 2 others [2020] eKLR Case Summary

Court
Employment and Labour Relations Court at Nairobi
Category
Civil
Judge(s)
Hon. Justice Byram Ongaya
Judgment Date
October 16, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Chama Cha Mawakili (CCM) v Chairperson Independent Electoral and Boundaries Commission & 2 others [2020] eKLR. Discover key legal insights and implications of this significant judgment.

Case Brief: Chama Cha Mawakili (CCM) v Chairperson Independent Electoral and Boundaries Commission & 2 others [2020] eKLR

1. Case Information:
- Name of the Case: Chama Cha Mawakili (CCM) v. The Chairperson Independent Electoral and Boundaries Commission & Others
- Case Number: Petition No. 104 of 2019
- Court: Employment and Labour Relations Court of Kenya
- Date Delivered: 16th October 2020
- Category of Law: Civil
- Judge(s): Hon. Justice Byram Ongaya
- Country: Kenya

2. Questions Presented:
The court was tasked with resolving whether the recruitment process for the position of Commission Secretary/Chief Executive Officer of the Independent Electoral and Boundaries Commission (IEBC) was unconstitutional and in violation of relevant laws, including the Constitution of Kenya and the Independent Electoral and Boundaries Commission Act, 2011. Additionally, the court had to determine the appropriate remedies for the alleged violations.

3. Facts of the Case:
The petitioner, Chama Cha Mawakili (CCM), filed a petition against the IEBC and its chairperson regarding the recruitment process for the position of Commission Secretary/CEO, which was advertised on 21st May 2019. The advertisement was to close on 4th June 2019, and 96 applications were received. The petitioner argued that the recruitment process failed to adhere to constitutional and statutory requirements, including principles of transparency and accountability as stipulated in Articles 10 and 35 of the Constitution of Kenya, as well as sections 10 and 27 of the IEBC Act. The petition also highlighted concerns about conflicts of interest, particularly involving the Acting Commission Secretary, Marjan Hussein Marjan, who had a vested interest in the position.

4. Procedural History:
The petition was filed on 21st June 2019, and the petitioner sought various orders, including a declaration that the recruitment process was unconstitutional and an order of judicial review to quash the recruitment process. The respondents filed their replying affidavits, asserting that the recruitment was within their statutory mandate and that the process had been transparent. The court considered the submissions from both parties and ultimately delivered its judgment on 16th October 2020.

5. Analysis:
- Rules: The court examined relevant statutes, including Articles 10 and 35 of the Constitution of Kenya, which mandate public participation and access to information, as well as sections 10(1) and 27 of the IEBC Act, which outline the requirements for a transparent and competitive recruitment process.
- Case Law: The court referenced previous judgments, including *Teachers Service Commission v. Kenya National Union of Teachers*, which emphasized the importance of managing conflicts of interest in recruitment processes and ensuring that procedures are followed to uphold fairness and transparency.
- Application: The court found that the recruitment process had not adhered to the necessary constitutional and statutory requirements. It noted that the decision to shift from using an independent consultant to conducting the recruitment internally raised doubts about the integrity of the process. The court also highlighted the lack of transparency and the failure to manage conflicts of interest adequately.

6. Conclusion:
The court ruled in favor of the petitioner, declaring the recruitment process unconstitutional and in violation of the law. It ordered the quashing of the recruitment process and mandated that a fresh recruitment process be initiated in strict compliance with the applicable laws.

7. Dissent:
There were no dissenting opinions noted in the judgment.

8. Summary:
The court's decision underscored the importance of transparency and adherence to constitutional principles in public recruitment processes. The ruling not only addressed the specific case of the IEBC but also set a precedent for future recruitment processes in public offices, emphasizing the need for accountability and conflict of interest management. The decision serves as a reminder of the legal obligations public bodies have in ensuring fair and open recruitment practices.

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