Fear of a tribunal being turned into a lynch mob and a theatre of public ridicule was the biggest reason behind the hurried resignations of two of the four besieged election commissioners, the Nation has established.
This even as the tribunal formed to investigate them last evening notified the four of a status conference this Friday in preparation for the inquiry.
The commissioners, multiple interviews have revealed, also fear the possibility of the tribunal recommending their prosecution, as well as the possibility of losing their benefits if found guilty, both of which they see can be solved by opting out of the process.
Independent Electoral and Boundaries Commission (IEBC) Vice-Chairperson Juliana Cherera quit yesterday, hot on the heels of a similar move by commissioner Justus Nyang’aya on Friday.
Ms Cherera, Mr Nyang’aya and their colleagues Irene Masit and Francis Wanderi were on Friday suspended by President William Ruto as he formed a five-member tribunal chaired by Court of Appeal judge Aggrey Muchelule to investigate their conduct and recommend their removal if found guilty of gross misconduct and violation of the constitution.
Other members of the tribunal are Carolyne Daudi, Linda Kiome, Mathew Nyabena and Col (Rtd) Saeed Saeed, with lawyers Emmanuel Kibet and Irene Nchoe as joint secretaries. Peter Murage will serve as lead counsel, assisted by Zamzam Abib.
With the resignations, Ms Cherera and Mr Nyang’aya hope to avoid what would be a public scrutiny of their lives and conduct in office, with their lawyer Apollo Mboya saying their quitting means they should not face the tribunal.
“Our position is that once they resign, the tribunal no longer has jurisdiction over them,” said Mr Mboya, who had protested the parliamentary process that advised the President to form the tribunal.
He, however, said his clients might still attend the tribunal hearings once the matter of jurisdiction and terms of engagement have been settled.
“We wait to see what the tribunal will say about their rules of procedure, as well as on their jurisdiction: whether it expands even beyond those that have resigned,” said Mr Mboya.
National Assembly Deputy Speaker Gladys Boss insisted that even with the resignations, the tribunal must discharge its mandate.
“Resignation by the IEBC commissioners cannot extinguish the duty of the tribunal constituted to investigate them. The tribunal must discharge its duty to interrogate their conduct and report on the facts. Kenyans deserve to know why they engaged in grave misconduct during the last election,” she said.
For the commissioners, there is the real fear, it seems, that like the parliamentary process, which they said had a predetermined outcome even before they were called before it, the tribunal will drag them through the mud.
“You can only set the record straight before an impartial tribunal. When you appear before a tribunal that has already written a judgment, they are only waiting for you to sanitise it, to give a resemblance of rule of law, then you will have failed the country. There is no need to appear before a tribunal when you know you are simply wasting your time,” said lawyer Danstan Omari, who represents Ms Cherera.
According to Mr Omari, there is also the reality that a tribunal, in its very nature, will lead to a public document whose adverse finding could mean lack of other public office jobs in future.
“The consequences of the tribunal to our client’s decision are permanent, a scar that they will be there forever, that they have been found guilty on trumped up charges,” Mr Omari said.
According to the lawyer, the IEBC bosses should only face the tribunal if they are assured of fairness, which he said was unlikely.
“Whether you appear with a million lawyers, whether you appear with whatever type of evidence, all people are waiting for is, when do you finish so they can read the judgment. Had it been a fair tribunal, our clients would have told the public their story, and an impartial tribunal would have arrived at a fair and just decision.
“The tribunal that is supposed to hear an accused person must not only be fair, but they must also be seen to be fair. Perception-wise, they are not playing fair, and in realness, they have failed. So why do you appear?” asked Mr Omari.
The commissioners also face the danger of the tribunal recommending to investigative and prosecutorial authorities to charge them for their conduct.
“The real fear for them might be that in the event of a tribunal, a decision could be reached that will incriminate them and they could then be subject to prosecution. This can be avoided with the resignations,” said Mr Ndung’u Wainaina, the executive director at the International Centre for Policy and Conflict.
There is also the money issue, with elections experts saying there is the possibility of loss of monetary and other benefits were the tribunal to find the four guilty.
“By resigning, they give themselves a chance to get a certain percentage of compensation on their terms,” said Mr Wainaina.
This follows a landmark Employment and Labour Relations Court ruling that declared it illegal to deny dismissed government officials pension, gratuity and other benefits.
The law states that such an officer, with a fixed term like the IEBC officials, is entitled to 31 per cent of their annual salary for the term served. The commissioners earn an annual gross salary of Sh9.2 million.
Yesterday, both Ms Cherera and Mr Nyang’aya talked of how their role in the commission and actions they said they did in good faith were “misconstrued, misjudged and misinterpreted”, further revealing the reasons for their exits.
“It is with immense woe that today I tender my resignation as commissioner and vice-chairperson of the IEBC. Since joining the commission, I have dispensed my duties diligently, meticulously, and put up a spirited effort in helping IEBC deal with corporate governance issues under very difficult circumstances,” Ms Cherera said in a letter received by the President yesterday.
She went on: “However, my cumulative actions done in good faith are unfortunately misjudged and misinterpreted. After careful consideration of the current events at the commission, and with consultation with my family and lawyers, I accept that my stay at the commission is no longer tenable and therefore choose to vacate.”
Like Ms Cherera, when he tendered his resignation on Friday, Mr Nyang’aya also talked of actions done in good faith but which had been misconstrued.
“I have endeavoured to act in the best interest of the country, although my actions, taken in good faith, have been misconstrued,” Mr Nyang’aya said. His decision, he wrote, came after “fervent prayers and in the best interest of the nation”.
“It is with a heavy heart that I tender my resignation as an IEBC commissioner,” said Mr Nyang’aya.
The formation of a tribunal to investigate the conduct of the commissioners has attracted condemnation by the Raila Odinga-led Azimio la Umoja One Kenya Coalition, which is planning a rally in their support.
“IEBC is being cannibalised and the consequences will be grim. We don’t want a William Ruto electoral commission. The commission must be for all Kenyans,” said Mr Odinga’s 2022 presidential election running mate Martha Karua yesterday.
Wiper leader Kalonzo Musyoka argued that the push by President Ruto’s Kenya Kwanza Alliance to change the composition of IEBC —with the tribunal for Ms Cherera and the other three, expiry of terms of the chairman and two commissioners, and a change of composition of the selection panel to pick new commissioners — was wrong, because such a process has to be consultative.
“This move to push out IEBC commissioners and change the commission could bring us trouble,” Mr Musyoka said.
Siaya Governor James Orengo, who led Mr Odinga’s legal team in the Azimio boss’s petition, described as worrying the resignations and other events unfolding around IEBC.
“Politics aside, the stability and independence of an electoral body is an important indicator of the state of democracy in any country. IEBC has become transactional and seasonal. There will be other seasons with different crops of leaders. Tragic fate awaits future commissioners,” he said.
Mr Odinga’s 2022 campaign spokesperson Makau Mutua said: “It’s clear the kangaroo tribunal to hang the IEBC Four was formed before UDA MPs ‘approved’ the JLAC (Justice and Legal Affairs Committee) report. The calendar of CJ (Chief Justice Martha) Koome was pre-cleared to swear in the hangmen. The speed of the operation bespeaks of a regime that’s deeply insecure and illegitimate.”
