Five petitioners want ‘Cherera four’ kicked out

The process of removing from office four Independent Electoral and Boundaries Commission (IEBC) commissioners kicked off yesterday when five petitions were filed in Parliament.

National Assembly Speaker Moses Wetang’ula immediately approved the petitions and committed them to the relevant House committee.

The petitioners accuse IEBC vice chair Juliana Cherera, and commissioners Irene Massit, Justus Nyang’aya and Francis Wanderi of gross misconduct and violation of the law.

The first petition was filed by the Republican Party, which says that the four violated the Constitution by issuing a press conference rejecting the presidential results on grounds that the chairperson of the commission had conducted the verification and tallying process in an opaque manner.

Interrogation and confirmation of the allegations contained in the petition will be left to a tribunal to be appointed by the President for that purpose, if a ground for removal is disclosed.

Wetang’ula directed the Justice and Legal Affairs Committee of the National Assembly to hear the petition.

“The committee has 14 days within which to submit a report to the House as required under the Standing Orders. Once the committee table the report, the House will have 10 days to decide whether or not the petitions contain valid grounds for removal of the commissioners,” he said.

The other petition is by the Rev Dennis Nthumbi, who accuses the four of partiality and biased conduct by agreeing to the proposal to alter the results of the presidential elections in favour of one candidate or in the alternative, to force a run-off.

Further, the petitioner accuses the four of disowning the results of the presidential election yet they had participated in the verification and tallying of the results.

“They accepted a proposal to alter the results of the election to subvert the will of the people of Kenya contrary to the Constitution,” reads the petition.

Farmers Party submitted the third petition, also seeking to have the commissioners ousted for allegedly attempting to sabotage the August 9 General Election.

The party alleges that the four attempted to sabotage an election process as witnessed on August 15, 2022, at Bomas of Kenya.

Opaque manner

“The petition by Farmers Party expresses the conduct of the commissioners as being a gross violation of the Constitution and a breach of their oath, which denies the four commissioners their legitimacy to hold the State offices as commissioners of the IEBC,” the petition reads in part.

The party – through Chege and Sang Company Advocates – claims that the quartet’s disagreement with IEBC chairperson Wafula Chebukati and later walking out during the announcement of results on August 15 contravened the law and their role owing to the fact that they hold a public office.

“On August 15, Juliana Whonge Cherera, Irene Massit, Justus Nyang’aya & Francis Wanderi, being commissioners to the Independent Electoral and Boundaries Commission, in utter breach of their oath of office, walked out of the national tallying centre with a sensational claim that the Presidential Elections were opaque,” reads the petition.

“The mentioned commissioners’ conduct was intended to bring out contempt or disaffection and in fact excited disaffection and cast aspersion towards the IEBC mandate as established by the Constitution of the Republic of Kenya.”

The party, which is affiliated with the President William Ruto-led Kenya Kwanza Alliance, further argues that the aftermath that saw the commissioners participate in the Supreme Court petition to have the elections nullified was a ploy to subvert the will of the people.

Judicious attention

It says: “The commissioners proceeded with their treacherous scheme in the Supreme Court and swore affidavits based on falsehoods, a fact which the Supreme Court noted in its decision of September 5.

“…Commissioners’ conduct, therefore, had the effect of subverting the will of the people and consequently in violation of the express provisions of Articles 1, 2, 73, 74, 138 and 140 of the Constitution.”

Geoffrey Langat and Stephen Owour filed the fourth and fifth petition in which they argue that the commissioners were in contravention of the Constitution and do not have the mandate to sit in the electoral body.

While committing the petitions to the committee, Wetang’ula noted that its work will be to guide the House, by way of a comprehensive report, on whether the petitions satisfy the grounds for the removal of any or all of the cited members of the commission.

“My predecessor has previously guided this House that proceedings relating to the removal of persons from office are quasi-judicial in nature and require judicious attention and sobriety,” he said. “Indeed, even the High Court has had occasion with regard to the petition for the removal from office of the then Auditor-General, Edward Ouko.”

Wetang’ula told members that they must conduct any quasi-judicial proceedings in strict compliance with the Constitution and the Fair Administrative Action Act.

Proceedings for the removal of a member of a constitutional commission or an independent office holder differ significantly from the investigatory powers of the House since constitutional office holders are protected by the law and the Constitution and there strict rules stipulating how they can be removed from office.