A voter has petitioned the High Court in Milimani Nairobi to declare the chairperson of the electoral commission Wafula Chebukati and the chief executive officer Marjan Hussein unfit to hold office over alleged violation of the Constitution.
Mr Milton Nyakundi, a journalist, also wants court to issue the same declaration against commissioners Boya Molu and Prof Abdi Guliye. He wants them removed from office over alleged gross misconduct in relation to the just-concluded General Election and procurement of the voting materials.
The ouster petition is based on the boardroom wars at the Independent Electoral and Boundaries Commission (IEBC) between Mr Chebukati and the vice chairperson Julian Cherera.
Although removal of a member of a Constitutional commission or of a holder of an independent office on any ground such violation of the Constitution ought to be initiated through the National Assembly, Mr Nyakundi believes court has powers to order for the removal of the commissioners he is targeting.
“I believe that the conduct of Mr Chebukati, Mr Molu, Prof Guliye and Mr Marjan has violated the Constitution, specifically Chapter Six and Articles 81 and 86 as well as other national laws. It cannot be said that the Respondents’ conduct has been in accordance to what is expected of them,” he says.
He alleges that they not only violated the Constitution but also other laws relating to the conduct of State/Public Officers. Hence, that the court should make findings on that question.
He claims that Mr Chebukati acted unilaterally during the tallying and verification of the 2022 presidential election by excluding the other commissioners, making four of them disown the results.
The petitioner is banking on the affidavits filed before the Supreme Court by Ms Cherera and Commissioners Irene Masit, Justus Nyang’aya and Francis Wanderi indicting Mr Chebukati for allegedly excluding them in the tallying and verification of the presidential election votes.
The Supreme Court has since ruled that the exclusion of the four commissioners was contrary and inconsistent with provisions of the Constitution.
Pending determination of the lawsuit, Mr Nyakundi wants court to bar Mr Chebukati, Mr Molu, Prof Guliye and Mr Marjan from accessing their offices until the judge renders a verdict.
Should the court grant the order, Mr Nyakundi says there will no vacuum in the office since the law allows Ms Cherera to hold the position in acting capacity.
“If a vacancy occurs in the office of the IEBC, Section 7A (4) of the IEBC Act provides that “the Vice Chairperson shall act as the chairperson and exercise the powers and responsibilities of the chairperson until such a time as the chairperson is appointed”.
The effect of the Respondents, especially Mr Chebukati, being barred from accessing their offices would not occasion any vacuum in the operations of the Commission as an Independent Commission,” says Mr Nyakundi.
On barring the CEO from office, the petitioner argues the same would not affect the administrative functions of the Commission.
“There exists sound and effective administrative structures to ensure the functions of Mr Marjan are performed for the duration he is not allowed to access his office,” claims Mr Nyakundi.
In addition, he wants them compelled to produce before court and make public all the contracts and related correspondences with respect to the IEBC’s procurement of printing election materials, including ballot papers as well as other strategic and nonstrategic election materials.
Mr Nyakundi is also seeking disclosure of information on procurement of elections technology including the results transmission system, servers and KIEMS –Kenya Intergraded Election Management System- kits.
Another interim order sought in the petition is suspension of any obligations in respect of contracts between two foreign firms (the Smartmatic International and Lykos (Hellas) SA) and IEBC.
Mr Nyakundi claims that elections agency started making blunders before Kenyans went to vote on August 9, 2022.
The petitioner has also questioned why the electoral agency settled on Smartmatic international, a company that he claims has been accused of triggering election postponements in Nigeria, to print ballots for Kenya's polls without public participation.
He further claims that the details of how the contracts for printing of ballot papers were entered into between the IEBC and the two foreign companies have never been made public.
Mr Nyakundi faults Mr Chebukati, Mr Marjan, Mr Molu and Prof Guliye for awarding the foreign firms tenders to supply election materials and technology during the election without the input of the other four commissioners. He alleges that this was contrary to the Fair Administrative Action Act.
He wants the Director of Public Prosecutions to be ordered to institute investigations against the four IEBC commissioners and the two foreign firms with a view to establish criminal liability for their conduct during the elections. The petition is pending directions.
The petition comes six months after the High Court dismissed a similar case seeking punishment for Mr Chebukati and removal from office for disobeying an order to allow ODM leader Raila Odinga access to the servers used in the 2017 presidential polls.
The judge also ruled that the court does not have the power to remove Mr Chebukati from the constitutional office.
Judge Ong’undi stated that the proper procedure to remove the chairman of a constitutional commission is by way of presenting a petition to the National Assembly setting out the alleged facts constituting the ground for removal from office.
The court based its ruling on Article 251 of the Constitution, which provides the process for removal of a member of a constitutional commission (other than an ex officio member), or the holder of an independent office.
