The bitter fallout at the polls body has evolved into a full-blown power struggle, with four commissioners putting in motion a coup to wrest control of the institution from Chairman Wafula Chebukati and take charge of its responses to petitions challenging the results of the August 9 presidential election.
Vice-chairperson Juliana Cherera and commissioners Justus Nyang’aya, Paul Wanderi and Irene Masit have filed a fresh set of documents at the Supreme Court, in which they claim to have authority to represent the Independent Electoral and Boundaries Commission (IEBC) in eight presidential petitions on account of being the majority.
They want the Supreme Court to disregard an initial IEBC response to the petitions filed by Mr Chebukati, who is supported by CEO Hussein Marjan and two commissioners—Abdi Guliye and Boya Molu—and instead recognise the one filed by Ms Cherera’s faction. Iseme Kamau & Maema Advocates filed the response on behalf of Mr Chebukati and IEBC on Saturday.
While the documents filed by Mr Chebukati’s faction were recorded by Iseme, Kamau & Maema Advocates, former Attorney General Githu Muigai will be leading the legal team fronted by the IEBC chairperson. Initially the four commissioners had filed individual responses to the petitions and had different lawyers representing them. Ms Cherera hired former Law Society of Kenya CEO Apollo Mboya, as Mr Nyang’aya retained Rachier & Amollo Advocates. Mr Wanderi opted for J. M. Njenga & Company Advocates and Ms Masit went for O. Ouma J. & Associates.
In her initial affidavit to the petition, Ms Cherera said the four commissioners met on Friday and resolved to file responses on behalf of IEBC. Ms Cherera said Mr Chebukati, Mr Molu and Mr Guliye snubbed communication calling for the meeting.
The four commissioners have now hired Issa & Company Advocates to file a fresh set of documents to respond to the petitions on behalf of IEBC.
In a move that would see the IEBC shoot itself in the foot, the four commissioners have asked the Supreme Court to nullify the presidential elections and order for a forensic audit of the polls body’s systems and equipment.
They also want Mr Chebukati compelled to develop, publish and file in court a comprehensive document with procedures and protocols for the management of presidential elections.
Documents filed by Mr Chebukati’s faction indicated that the IEBC as an institution would stand its ground by insisting that elections were well run and results accurately tallied. In that set of documents, the IEBC said that it tallied and verified results which showed that William Ruto had won the Presidential race.
The IEBC response filed by the Chebukati team insists that the tallying and verification was done by the polls body as a commission, and not exclusively by its chairperson. But in what the rival four commissioners want the Supreme Court to recognise as the IEBC’s response, they claim that Mr Chebukati has caused lack of accountability and transparency by undermining other commissioners and failing to consult them on critical operation procedures. The response filed by the four commissioners seeks orders that are largely similar to those in petitions filed by former Prime Minister Raila Odinga, Busia Senator-elect Okiya Omtatah and activist Khelef Khalifa.
“The IEBC’s response is given under the authority of the majority of its members and is supported by the supporting affidavit of Ms Cherera, Mr Nyang’aya, Mr Wanderi and Ms Masit. The IEBC confirms that the disunity, lack of consultation and unilateralism by Mr Chebukati and part of the commissioners impaired the ability of the IEBC to discharge its mandate in the manner contemplated by the Constitution,” the commissioners argue.
In their fresh set of documents, the four commissioners want the Supreme Court to issue orders barring Mr Chebukati or anyone else from victimising them, spreading propaganda or interfering with their ability to continue serving their terms at the IEBC.
In his individual affidavit, Mr Chebukati claims that the National Security Advisory Committee (NSAC) sent emissaries to his office at the national tallying centre on August 15 to try and tilt the election results in favour of Mr Odinga and his Azimio la Umoja One Kenya Coalition Party running mate Martha Karua.
The NSAC allegedly told Mr Chebukati that declaring Dr Ruto the winner would be against the country’s interests.
Mr Chebukati said that he called in other commissioners, and that the four, now part of an opposing faction, were agreeable to tilting the election results as demanded by the NSAC.
Ms Cherera, Mr Nyang’aya, Mr Wanderi and Ms Masit on August 15 held a press conference minutes before Mr Chebukati’s final declaration of results, in which they disowned the results announced by the chairperson on account of constitutional violations.
The four commissioners initially said in their individual responses to the suit that Mr Chebukati bungled the election by running a one-man show, before asking them to rubber stamp unverified results for the presidential race.
They added that Mr Chebukati had, for several months, failed to consult them on crucial matters regarding IEBC’s operations.
In the new response filed by Issa & Company Advocates, the four commissioners claim tallying and verification of election results at the national tallying centre were halted on Mr Chebukati’s orders without consultation of IEBC commissioners.
“The tallying and verification at the Bomas of Kenya was not conclusive as it was unilaterally halted by Mr Chebukati without consultation or notice to the other members of the IEBC,” they added. The fallout at the IEBC further played out in the individual affidavits the four commissioners initially filed.
Ms Cherera claimed that, on August 23, she sent an internal memo to Mr Chebukati seeking to know law firms pre-qualified by the IEBC, but that she got no response. She said that, a day later, she alongside Mr Nyang’aya, Mr Wanderi and Ms Masit called for a special meeting of commissioners to discuss IEBC’s position.
Mr Marjan allegedly responded to the calls for a meeting on August 25 at 11pm. In his response, Mr Marjan said the commission would sit on August 31, four days after the deadline for filing replies to the presidential petitions.