Four commissioners of the electoral commission who differed with chairman Wafula Chebukati during the recent tallying of the presidential votes and subsequent Supreme Court hearings are facing a premature end to their tenure.
Kenya Kwanza members have kick-started the removal of the ‘breakaway’ commissioners, who accused Mr Chebukati of unilaterally announcing President-elect William Ruto ’s win.
The Independent Electoral and Boundaries Commission (IEBC) has also moved to take disciplinary action against one of the bosses in the secretariat, Ruth Kulundu, over her alleged conduct.
Kenya Kwanza, which is led by the President-elect, is banking on two petitions to be filed by Garissa Township MP Aden Duale and another by former PS Irungu Nyakera-led Farmers Party to execute the ouster plan.
Besides dramatically accusing Mr Chebukati of opacity in making the final presidential tally, the four commissioners also filed petitions at the Supreme Court supporting Azimio la Umoja One Kenya coalition leader Raila Odinga ’s prayers to have Ruto’s win overturned and the election outcome declared null and void.
The Farmers Party petition has been presented to Parliament, with another from Mr Duale in the offing.
The petition was received by the National Assembly yesterday and accuses the four commissioners of attempting to sabotage an election process.
Gross violation of Constitution
The party wants the four removed from office on the grounds of gross violation of the Constitution and a breach of their oath, charging they do not have the legitimacy to hold state offices as IEBC commissioners.
“The commissioners’ conduct amounted to a betrayal of public trust of the people of Kenya, thereby rendering them unfit to continue holding their constitutional offices and or acting as such,” reads the petition.
The petitioner says the commissioners’ conduct was made for selfish reasons known to themselves and not in the best interest of the people of Kenya.
“The commissioners proceeded with their treacherous scheme in the Supreme Court and swore affidavits based on falsehoods, a fact the court noted in its decision.”
Mr Nyakera says in the petition that the conduct of the commissioners had the effect of subverting the will of the people in violation of the express provisions of Articles 1, 2, 73, 74, 138 and 140 of the Constitution.
He adds that their conduct was reckless, selfish, and devoid of the national values of patriotism as provided in Article 10 of the Constitution.
“The Farmers Party believes that this petition to the National Assembly is critical to entrenching the value of the IEBC in the growth of democracy and guide the code of conduct by IEBC officials in subsequent elections.”
Mr Duale also confirmed to Saturday Nation that he is planning to file a petition to Parliament seeking to send the four commissioners home, arguing the recent judgment by the Supreme Court has indicted them as far as the August 9 election is concerned.
Mr Duale, a UDA MP and a close ally of President-elect Ruto says he is only awaiting the release of the full judgment to enable him to file a comprehensive petition.
“I’m waiting for the full ruling, which the court promised to release after 21 days, to bring a petition here in Parliament. They (commissioners) must go home because they have been indicted by the Supreme Court,” he said.
“You can quote me on this, they have to go home. You cannot say the election is opaque then later come out and the ruling supporting the same election,” the former Majority leader added.
Nominated MP John Mbadi, however, said the move is in bad taste and dictatorial.
Mr Mbadi said the incoming government should embark on fulfilling their campaign pledges, instead of going after commissioners who expressed their independent opinions.
“Duale should just stop excitement, which is not the way to handle independent commissions. You don’t punish individuals just because they don’t agree with your view of things. That is being dictatorial and we will not allow the gains made to be reversed,” Mr Mbadi said.
Article 251 of the Constitution provides that commissioners can only be removed through a petition filed in the National Assembly and tribunal formed by the President.
The chairperson and the commissioners, who are constitutional office holders, can be removed only for serious violation of the Constitution or any other law, including a contravention of Chapter Six, gross misconduct, whether in the performance of the member’s or office holder’s functions or otherwise.
Other grounds include physical or mental incapacity to perform the functions of office, incompetence or bankruptcy.
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 may suspend the member or office holder 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 Article 251 (6).
Should Mr Duale make good his threat, the move will prove another battleground between Azimio and Kenya Kwanza MPs in the National Assembly.
The petition will come when Dr Ruto will be officially discharging his duties as the Head of State, with full powers.
The speaker of the National Assembly is also a member of his political alliance, making it easy for the matter to sail through the House.
The electoral commission has also threatened to sack its deputy chief officer, Ms Kulundu, for her alleged link with the four breakaway commissioners.
In a letter obtained by Saturday Nation , IEBC chief executive Marjan Hussein Marjan has accused Ms Kulundu of arranging a plenary for Vice Chairperson Juliana Cherera and commissioners Irene Masit, Francis Wandera and Justus Nyang’aya without his knowledge.
In the letter dated August 29, Mr Marjan termed Ms Kulundu’s action an outright impersonation that is punishable by summary dismissal.
It is in the said plenary, held on August 26, that the four dissenting commissioners reportedly resolved to file responses to the Supreme Court presidential petition on behalf of the commission.
The four proceeded to hire Senior Counsel Paul Muite and Issa Mansoor in the dismissed presidential petition that was filed by Azimio la Umoja One Kenya coalition party.
The seven-judge apex court, however, ruled against them and only allowed Senior Counsel Githu Muigai to represent the IEBC. Prof Muigai was procured by Mr Chebukati’s faction.
Mr Marjan yesterday declined to respond to our queries on the matter, while one of the four breakaway commissioners confirmed being aware of the plan to punish the official.
Mr Marjan, in the letter, has asked Ms Kulundu, who is serving as deputy commission secretary in charge of operations, to respond within 14 days on why she should not be disciplined for her action.
“The commission has learnt that on August 26, 2022, you arranged for a commission Plenary Meeting No. 279 without authority or delegation by the commission secretary/CEO,” states the letter.
“Therefore, you impersonated the CEO and usurped his responsibilities as you purported to perform his duties without his authority or delegation. Moreover, Plenary Meeting No.279 had already been held thus voiding the ‘other’ meeting of 26th August 2022 where you were secretary, and rendering it illegal.
“Impersonation of the CEO and participating in illegal activities without the sanction of your supervisor and controlling officer, who is the commission secretary as indicated in your appointment letter clause 3, is insubordination and a serious breach of your employment contract.”
She is further accused of threatening and intimidating other staff members in total contravention of the rules of conduct.
“It is on record that on August 12, 2022, you allegedly attacked, insulted and threatened a commission staff, Mr Moses Sunkuli, without provocation, thereby arousing in him a sense of fear and insecurity in his life,” states the letter.
“The above allegations are very serious and constitute gross misconduct as stipulated under the IEBC HRA Manual, 2020, Section 12.10.1 and warrant very severe disciplinary action, including dismissal from the service... if found culpable in accordance with section 12.13 of the manual.”
