The “tactical” resignation of Mr Justus Nyang’aya from the Independent Electoral and Boundaries Commission (IEBC) and the impending retirement of chairman Wafula Chebukati alongside commissioners Abdi Guliye and Boya Molu has shifted focus to the next battle of getting a new team.
Of interest would be the proceedings and outcome of the tribunal established by President William Ruto to investigate IEBC vice-chairperson Juliana Cherera and commissioners Francis Wanderi, Irene Masit and Mr Nyang’aya in relation to the announcement of the August 9 presidential elections results.
Should Ms Cherera and the two other commissioners be found to have violated the law, they will be hounded out of office in what will mark a clean sweep of the current team.
But should they survive the onslaught, they would likely be more influential in the commission, which is perhaps the most volatile constitutionally independent institution.
Azimio la Umoja One Kenya Coalition leader Raila Odinga has called for mass action against the decision to remove the four IEBC commissioners.
He condemned the proceedings of the Justice and Legal Affairs Committee of the National Assembly that recommended the formation of the tribunal.
The National Assembly has already passed a bill seeking to alter the process of recruiting electoral commissioners even as the country stares at Mr Chebukati, Prof Guliye and Mr Molu’s retirement on January 17, with the three having served a non-renewable term of six years at the IEBC.
Mr Bobby Mkangi, a constitutional lawyer, termed the resignation of Mr Nyang’aya as tactical as it would protect him from any adverse implications of the tribunal findings.
He also stands to receive his benefits as well as still having a chance to take up a public job in future.
Mr Nyang’aya will, however, not have the chance to defend himself from his accusers.
“It might be tactically advantageous not to face the tribunal. It is a stain on your personality if you are kicked from office through a tribunal. If you want to take a public office in future, it becomes a basis for rejection. It is also in the four commissioners interest to appear at the tribunal because they will have a platform to defend themselves against the accusations,” Mr Mkangi told the Sunday Nation.
He added that in the event the tribunal recommends criminal investigations, even those who choose to resign to avoid facing the panel become persons of interest.
There were reports of the three other commissioners planning to quit instead of facing the tribunal.
Violation of Constitution
In such a turn of event, Mr Mkangi, says the tribunal chaired by Justice Aggrey Muchelule would have no business to discharge.
Members of the tribunal are Ms Carolyne Kamende Daudi, Ms Linda Gakii Kiome, Mr Mathew Njaramba Nyabena and Col (Rtd) Saeed Khamis Saeed.
“It is a heavy responsibility bestowed upon us by this nation. We have agreed to do everything, be level-headed, independent and be fair in the delivery of this mandate,” Justice Muchelule said after taking the oath.
Article 251 of the Constitution provides that commissioners can only be removed through a petition filed in the National Assembly and a subsequent formation of a tribunal by the President.
Also read: Inside Kenya Kwanza plan on IEBC changes
The commissioners can be removed from office only for serious violations of the Constitution or any other law, including a contravention of Chapter Six and gross misconduct.
Other grounds are physical or mental incapacity to perform the functions of office, incompetence or bankruptcy.
“The tribunal shall investigate the matter expeditiously, report on the facts and make a binding recommendation to the President, who shall act within 30 days,” reads Article 251 (6).
The Independent Electoral and Boundaries Commission (Amendment) Bill, 2022 was passed by the National Assembly on Thursday.
The bill has since been forwarded to the Senate for concurrence before it becomes law.
The bill by National Assembly Majority Leader Kimani Ichung’wa proposes that the Parliamentary Service Commission (PSC) nominates two members to the IEBC’s seven-member selection panel, down from the current four while donating the other two slots to the Political Parties Liaison Committee and the Public Service Commission (PSC).
The Law Society of Kenya and the Inter-Religious Council of Kenya will retain their one and two nominees’ slots, respectively, in the proposed amendments.
“The principal object of this bill is to amend the first schedule to the IEBC No 9 of 2011 to change the composition of the selection panel that oversees the filling of vacant positions in the commission,” the bill says.
There is already a clash with the opposition Azimio la Umoja One Kenya Coalition over the proposed changes.
But Mr Ichung’wa has remained bullish, stating that the changes at the commission will help cure the mess created by Mr Odinga and former President Uhuru Kenyatta.
Mr Ichung’wa said the four commissioners were appointees of Mr Kenyatta and Mr Odinga in total exclusion of other political players.
“Those four commissioners being removed were put there by Uhuru and Raila. It is the provision that Uhuru created of having the PSC nominate four members to the panel is what we are correcting,” Mr Ichung’wa added.
“We have seen the folly of having biased commissioners. They can burn a country. We want to tell Azimio la Umoja One Kenya that we are not interested in having stooges in the commission. The fact that we are in government should tell them that you don’t need your people at the commission to win an election. All you need is to sell your agenda to the voters.”
He said the current Act has made the process an exclusive affair of Parliamentary Parties with members in the PSC.
That, Mr Ichung’wa added, has locked out many political stakeholders in the hiring of commissioners.
“We are seeking to cure the prejudice the Act created where only parliamentary parties have opportunity in such a process. The last recruitment was basically a Jubilee and Orange Democratic Movement (ODM) affair. Other parties were excluded,” the Majority Leader insisted.
“By bringing on board the Political Liaison Committee, we will ensure involvement of all political parties.”
But Jubilee Secretary General Jeremiah Kioni said any attempt to capture electoral commission by the Kenya Kwanza administration risks plunging the country into chaos.
Mr Kioni told the ruling alliance to engage the opposition in changes touching on the IEBC.
“Those in power tend to come up with schemes that can help them retain power. This is what Kenya Kwanza is doing. But they should know that the IEBC is an important institution. It is very dangerous for the country if one side feels excluded from any process touching on the commission,” Mr Kioni said.
“Those in power have to be sensitive to those out of power. The electoral commission needs to be handled with sobriety, otherwise we will be setting up the country for anarchy.”
Nominated MP John Mbadi, who doubles as ODM national chairman, said there is an attempt to capture the commission for purposes of the 2027 General Election.
“President Ruto has no respect for the rule of law. They are rushing all these processes with a predetermined outcome in mind. They passed the IEBC bill at night. There was no public participation as required by law,” Mr Mbadi added.