Inside Kenya Kwanza plan on IEBC changes

Ruaraka MP and Member of Justice and Legal Affairs Committee of the National Assembly, TJ Kajwang during a meeting with stakeholders on the IEBC bill at County Hall on December 1, 2022.

President William Ruto’s Kenya Kwanza Alliance has developed a two-pronged approach to create a brand new electoral commission – the proposal to set up a tribunal to send home four commissioners and changing the membership of the panel to recruit a new team.

With the term of Independent Electoral and Boundaries Commission (IEBC) chairperson Wafula Chebukati and commissioners Boya Molu and Abdi Guliye coming to an end in January, and the remaining four facing ouster, the road to a new polls body appears already paved.

Yesterday, the Justice and Legal Affairs Committee (Jlac) recommended the formation of a tribunal to investigate IEBC Vice-Chairperson Juliana Cherera and commissioners Justus Nyang’aya, Francis Wanderi and Irene Masit in relation to their conduct during the August elections. The four distanced themselves from the presidential election results announced by Mr Chebukati, saying the tail end of the verification and tallying process was opaque.

Last evening, MPs adopted the report.

The same committee yesterday said it had concluded public participation on the IEBC Bill, which took a record one hour. The team was scheduled to meet Kenyans to present their views on the Bill but only a representative from the National Youth Council turned up. However, Johnson Ridhaa, who represented the council, said he wanted more time to come back with a written presentation.

But Jlac chairman George Murugara (Tharaka, UDA) ruled that it was done with public participation.

In its report on the removal of the four commissioners, Jlac wants the President to immediately suspend the four awaiting the decision of the tribunal.

Article 251 of the Constitution provides that upon receiving a petition, the National Assembly considers it and, if it is satisfied that it discloses a ground under clause (1), shall send the petition to the President. On receiving a petition, the President will suspend the member(s) or office holder(s) pending the decision of the tribunal.

“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 the law.

The chairperson and the commissioners can be removed only for serious violation of the constitution or any other law, including a contravention of Chapter Six and gross misconduct. Other grounds include physical or mental incapacity, incompetence or bankruptcy.

The committee found that all the four petitions filed against the four commissioners had sufficient grounds to warrant formation of a tribunal. The petitions were filed by the Republican Party, Godfrey Langat, Jerry Owuor and Rev Ndwiga Nthumbi.

Lawyers representing the four commissioners had argued that their clients could not appear before it in the absence of evidence linking them to the allegations. But Jlac, in its findings, noted that Section 3(k) of the Parliament Act, 2012, precludes a petitioner from attaching any affidavit to support a petition hence the lack of affidavits in the petition was not a consideration.

The committee also pointed out that Article 251 of the constitution does not prescribe a timeline for the consideration of a petition for the removal of a member of a commission or a holder of an independent office. The commissioners, through their lawyers, had told the committee that they need 14 days for each of the petitions to respond.

The Jlac report has only been signed by eight Kenya Kwanza lawmakers. The Azimio la Umoja One Kenya Coalition MPs walked out of the proceedings on the first day and did not return for the other three days of the proceedings.

Minority Whip Junet Mohammed yesterday castigated the Kenya Kwanza administration for doing everything in a hurry and turning Parliament into a rubber stamp.

“The report is being tabled now and it is coming for debate. It’s one of the rare cases I have come across in the House where things are done in such a hurry,” Mr Mohamed said.

Yesterday, Majority Leader Kimani Ichung’wa connected the possibility of removal from office of the four commissioners and the bid to alter the membership of the panel to pick new commissioners.

“The country cannot operate without a commission. Should anything be decided that is adverse, we stand the risk of running without a commission,” he said, in reference to the impending exits of Mr Chebukati, Prof Guliye and Mr Molu as well as the possibility of the ouster of the four commissioners.

The Bill sponsored by Mr Ichung’wa seeks to reduce the current allocation to the Parliamentary Service Commission from four of the seven member-panel to two. The two should then be donated to the Political Parties Liaison Committee and the Public Service Commission.

“The selection panel shall consist of a man and a woman nominated by the Parliamentary Service Commission, one person nominated by the Public Service Commission, one person nominated by the Political Parties Liaison Committee, one person nominated by the Law Society of Kenya and two persons nominated by the Inter-religious Council of Kenya,” the Bill proposes.

The ruling coalition argues that the inclusion of the Political Parties Liasion Committee will ensure inclusion of all political players in the recruitment of IEBC commissioners.

But Azimio opposes the Bill arguing that it is a ploy by President Ruto to gain control over the electoral agency.