The electoral commission’s chairman Wafula Chebukati is among witnesses expected to testify before a tribunal formed by President William Ruto to investigate the conduct of four members of the polls agency, sources within the tribunal have disclosed.
The sources, who spoke in confidence as they are not allowed to speak to the Press, indicated that other key witnesses include top officials of the Independent Electoral and Boundaries Commission (IEBC).
The tribunal, chaired by Court of Appeal judge Aggrey Muchelule, is expecting six witnesses during the sittings scheduled to start on December 20 at the Kenya Institute of Curriculum Development.
It was formed to investigate commissioners Juliana Cherera, Justus Nyang’aya, Francis Wanderi and Irene Masitt over their conduct in relation to the August 2022 presidential election.
However, Ms Cherera, Mr Nyang’aya and Mr Wanderi have since resigned, leaving Ms Masit as the only one fighting for survival. They were accused of taking sides in the presidential results.
Justice Muchelule fixed the hearing date during a status conference on Friday after the tribunal overruled Ms Masit’s objections on the proceedings.
She had argued that she has pending court case which has a bearing on the tribunal’s proceedings. The tribunal, however, ruled that there was no stay order from the court suspending the hearings.
She had also challenged the tribunal’s proceedings on grounds that since the team was formed to investigate four commissioners and given that her colleagues have resigned, then the tribunal lacks jurisdiction.
But the tribunal held that the investigations were on each of the four commissioners individually and not collectively.
On August 15, 2022 when the IEBC chairman was about to announce the final tally of the presidential election the four commissioners walked out of the tallying centre and proceeded to Serena hotel to hold a press conference where they distanced themselves from the results.
They alleged that the chairman had side-lined them in the process and picked the Chief Executive officer Marjan Hussein to compile and tally.
In the case she has filed at the High Court, she is seeking to quash her impeachment proceedings alleging that the same is unconstitutional.
She wants the court to quash the report by the parliamentary Justice and Legal Affairs Committee which recommended establishment of the tribunal to investigate her conduct and that of her three colleagues. She also wants to be reinstated to office to complete her six-year term.
The four commissioners were appointed in office in September 2021 for a six-year term, which was to end in 2027.
In June this year, Ms Masit survived an attempt to remove her from office on claims that her appointment was illegal.
The court found that at the time of her appointment, she was not eligible for appointment as a member of the IEBC since five years had not lapsed from the time she contested for an MP seat in 2017. She was appointed in September 2021.
Though Justice Anthony Mrima held that Ms Masit’s appointment was illegal and unconstitutional, he refused to revoke her appointment and allowed her to remain in office to avoid interfering with the preparations for the August General Election and to avert any constitutional crisis in the country.
“Whereas this court may be seen as sanctioning an unconstitutionality, the circumstances of the matter call for the maintenance of the prevailing status. It is in greater public interest and good that the preparations toward the holding of the forthcoming general election are not interfered with, less the country may find itself in a constitutional crisis,” said Justice Mrima.