IEBC explains why 90-day constitutional limit can’t apply to current by-elections

The Independent Electoral and Boundaries Commission (IEBC) has moved to address public concern over the constitutional 90-day timeline for holding by-elections, saying unique circumstances have forced it to set new dates outside the strict period provided in law.

Article 101(4)(b) of the Constitution requires that a by-election for a vacant parliamentary seat be conducted within 90 days of the vacancy being declared.

However, the Commission noted that several seats fell vacant before it was reconstituted, making it impossible to meet the deadline.

“For example, the people of Baringo County lost representation at the Senate on 16th February 2025, while Banissa Constituency lost representation on 28th March 2023, Magarini Constituency on 3rd March 2023, Ugunja Constituency on 8th August 2024, Malava Constituency on 17th February 2025, Mbeere North Constituency on 17th April 2025 and Kasipul Constituency on 30th April 2025,” the Commission said.

IEBC explained that it is operating under extraordinary circumstances and has instead turned to Article 259 of the Constitution, which offers guidance when timelines have lapsed.

“It allows flexibility in reckoning time where circumstances require, and where no contrary intention is expressly stated in the Constitution,” it noted.

The electoral commission added that article 259(1) requires that the Constitution be interpreted in a way that promotes its purposes, values and principles, advances the rule of law and fundamental rights and freedoms, permits development of the law, and contributes to good governance.

IEBC also pointed to logistical challenges, noting that most polling stations are located in schools, and conducting by-elections during school terms would disrupt learning and limit access to voting facilities.

It further clarified that the Constitution does not prescribe timelines for filling Members of County Assembly (MCA) vacancies.

On Sunday, Nairobi Senator and ODM Secretary-General Edwin Sifuna questioned the legality of the by-elections schedule arguing that pushing the polls to November 27 violates the law.

“Article 101(4)(b) requires IEBC to conduct by-elections within 90 days of issuance of writs. Unless my maths is wrong, November 27th is more than 100 days away,” he said.

However, IEBC maintains that the 90-day period applies under normal and ideal circumstances, but due to the prevailing unique situation, the timelines for the by-elections have been set in full compliance with the Constitution.