The withdrawal of the electoral agency from a multi-sectoral poll preparedness forum has sparked a new political battle between Deputy President William Ruto and ODM leader Raila Odinga.
Tuesday, the decision by the Wafula Chebukati-led Independent Electoral and Boundaries Commission (IEBC) was roundly criticised by top political players, with some terming it reactionary.
Dr Ruto’s United Democratic Alliance (UDA) had complained about Chief Justice Martha Koome’s leadership of the committee, citing judicial independence.
UDA, which had petitioned the IEBC to take action against two Cabinet secretaries who were sitting in the team, welcomed the development.
However, ODM leaders Junet Mohammed and Edwin Sifuna accused the IEBC of bowing to demands by one of the parties.
Mr Junet said ODM was only interested in free, fair, credible, verifiable and accountable elections.
‘We are watching you’
“I want to tell Chebukati that we have not forgotten how you bungled our election in 2017. We went to Supreme Court, which nullified that election and called for changes and reforms at the commission before the repeat election but IEBC refused to spearhead those reforms. We do not want to go back to that path,” said Mr Junet, the party’s Director of Elections.
He went on: “If you are plotting to conduct a sham as you did in 2017, we are watching you. You know the real colours of ODM. You know us and we know each other quite well. Please don’t provoke us.”
“When our opponents see people trooping to our party as they did today, they get scared and start writing letters to IEBC to withdraw from election preparation committee and censuring CSs,” Mr Sifuna, the ODM secretary-general, said at Chungwa House while receiving defectors.
“We want to tell the IEBC that elections are not conducted on behalf of or for IEBC but all Kenyans. If all the teams are put in place to ensure a successful electoral process, it’s not right to see them run away to work in isolation,” Mr Sifuna said.
Baringo MP Gladwell Cheruiyot, who is allied to Kanu chairman Gideon Moi’s camp, also said it was fishy for the electoral agency to withdraw from the election team just because one party was not comfortable with certain individuals.
“The most challenging thing is IEBC quitting the election team. That is something that should be really looked into. On Koome chairing the committee, is it only UDA that is expressing fears, or other parties as well? Because if it is only one party that is uncomfortable, then it should also come clean on the fear. If it is a general thing then as a government we should relook at it. If it comes from one party, their fears must be explained and understood,” Ms Cheruiyot argued.
Engage political parties
Gatundu South MP Moses Kuria, who is also Chama Cha Kazi (CCK) party leader, said the IEBC should engage political parties.
“I support Chebukati’s refusal to report to government agencies, but he has refused to be accountable even to political parties, who are the stakeholders in elections. He is the biggest risk to a peaceful Kenya,” said Mr Kuria.
Belgut MP Nelson Koech warned ODM against threatening IEBC and its chairperson using UDA’s name.
“If it is free and fair election ODM wants, which part of the IEBC chairperson’s letter to Karanja Kibicho didn't they understand? We’ll explain it to them. Has ODM become Kibicho's spokesperson to protest on his behalf? The IEBC chairperson addressed his letter to PS Karanja Kibicho, ODM was not copied in, so on whose behalf are they responding or purporting to issue ultimatums to the IEBC chair?” wondered Mr Koech.
Free and fair elections
The IEBC, he noted, had refused to be controlled by any government ministry in the interest of free and fair elections.
“That position needs to be respected by all players. Unless ODM are saying they have panicked after IEBC moved to assert its independence, we don't see why they should be crying more than the bereaved,” added the Belgut legislator.
“The last thing we want is a repeat of 2007, where the President was sworn in by the CJ at twilight or where Kenyans take to streets because they don't trust the IEBC and they don't trust Supreme Court as happened in 2007,” he explained.
Dr Ruto’s camp, led by MPs Kimani Ichung’wa (Kikuyu), Ndindi Nyoro (Kiharu), Mr Koech (Belgut) and Irungu Kang’ata (Murang’a) cautioned ODM against trying to control the IEBC.
“ODM must not seek to control the IEBC through this state-crafted scheme of a consultative forum. IEBC must exercise its constitutional mandate independently, without undue influence by state operatives that ODM seeks to hide behind,” Mr Ichung’wa told the Nation.
“The Constitution states that the IEBC is an independent body. It should not receive directions from any quarter. What Chebukati has done is the right thing from a legal point of view. Remaining in that committee would have compromised the trust that political parties must have in the IEBC,” Senator Kang’ata said.
Law Society of Kenya (LSK) president Nelson Havi, who has declared his support for the DP, also welcomed the IEBC’s withdrawal from the election preparedness committee, arguing that its establishment was unconstitutional.
“Participation of Interior Principal Secretary Karanja Kibicho in election preparation is unlawful and unconstitutional. A judge does not descend into the arena of conflict. It is a legal principle that is known to the Chief Justice,” said Mr Havi.
The members of the multi-sectoral agency on election preparedness also include Attorney-General Kihara Kariuki, Interior Cabinet Secretary Fred Matiang’I and his ICT counterpart Joe Mucheru.
Mr Chebukati cited a decision of the court in Kenneth Otieno versus Attorney-General and IEBC Petition No 127of 2017 for the poll agency’s withdrawal.
In the 2017 petition, the court declared the Election Technology Advisory Committee (ETAC) unconstitutional.
Mr Chebukati cites the finding of the court that the inclusion of agencies, institutions or stakeholders in a team to decide on elections was an infringement of the IEBC’s mandate.
Independence of the IEBC
In their ruling, Justices Pauline Nyamweya, Mumbi Ngugi and Enock Mwita argued that inclusion of relevant agencies, institutions or stakeholders threatened the independence of the IEBC.
“In our view, the use of general words such as “relevant agencies, institutions or stakeholders” leaves room for inclusion of people expressly excluded by Article 88(2) of the Constitution from running the affairs of IEBC, and the composition of the committee and the functions given to it threatens the structural independence of IEBC that is guaranteed by the Constitution,” reads the ruling in part.
“We find and do hereby declare that section 44(8) of the Elections Act, 2011, that provides for the establishment of a technical committee comprising relevant agencies, institutions or stakeholders as IEBC may consider necessary to oversee the adoption and implementation of technology in the electoral process, violates Articles 88 and 249(2) of the Constitution, and is therefore unconstitutional,” the judges added.
Ruto allies have questioned the legitimacy of the multi-agency team that is chaired by CJ Koome, wondering why such a forum was not there in 2017.
Dr Ruto’s allies admit Ms Koome’s predecessor, Chief Justice David Maraga, chaired the Judiciary Committee on Elections just before he was appointed CJ, but insist that a forum similar to the one Ms Koome chairs did not exist both in 2013 and 2017.
Terms of reference
The terms of reference of the technical working team on elections include promoting consultations on election preparedness, advising the government on the resources required and coordinating electoral assistance by development partners.
The team is required to facilitate legal reforms, facilitate the provision of necessary information, communication and technological infrastructure required ahead of the elections.
The team is also mandated to facilitate investigation and prosecution of election-related offences, expeditious conclusion of pending election-related cases and receive and consider reports on election preparedness.
“No CJ has ever chaired a multi-agency committee on elections. In 2016, Justice David Maraga chaired the internal Judiciary committee on election petitions. When he was appointed CJ, he handed over the chair to Justice Msagha Mbogholi,” said Elgeyo-Marakwet Senator Kipchumba Murkomen.
The Nation has established that prior to Justice Maraga’s appointment as Chief Justice, he was the chairperson of the Judiciary committee on elections (JCE).
Currently, the JCE is headed by Justice Mohammed Ibrahim of the Supreme Court.
The JCE represents the Judiciary at the technical working committee on election preparedness, according to Ms Koome.
But Senator Kipchumba Murkomen and other Ruto allies insist the committee on elections only deals with Judiciary’s own plans on elections and does not encompass the multi-agency team.