New headache for Ruto allies over Cherera 4 probe
The tribunal formed to investigate the conduct of four electoral commissioners begins its sittings today with a cloud hanging over its jurisdiction with regard to three of the officials who have resigned.
Only commissioner Irene Masit is determined to go the full hearing. She said through her lawyer that she would seek to exonerate herself before the tribunal after three of her colleagues – vice chair Juliana Cherera and commissioners Justus Nyang’aya and Francis Wanderi – threw in the towel rather than face the tribunal.
Masit’s lawyer, Donald Kipkorir, said on Twitter that he had filed a constitutional petition in the High Court seeking to stop the tribunal from investigating or impeaching his client.
The legal fraternity is divided over whether the three were supposed to have tendered their resignation letters to their appointing authority — who is the President — or to the tribunal.
Government honchos are exploring ways through which the mandate of the tribunal can be extended to enable it not only to “punish” the four, but also unearth all irregularities surrounding announcement of the presidential election results.
In August, the four described the results of the presidential election results as opaque and declined to endorse them after they accused their chairman, Wafula Chebukati, of failing to involve them at the tail end of the electoral process.
In September, they filed affidavits supporting an election petition filed by Azimio One-Kenya Coalition leader Raila Odinga at the Supreme Court. The petition was challenging the declaration of Ruto as winner of the presidential race.
Cherera, Nyang’aya resigned after a parliamentary committee recommended that President Ruto should form a tribunal to investigate the conduct of the four commissioners. Yesterday, Wanderi also indicated that he had resigned.
He said that his resignation was “necessitated by undue and unwarranted public lynching” based on falsified information aimed at tainting his reputation and integrity.
“The same election birthed the so called “Cherera 4 Commissioners” who exercised their right to express themselves on last-minute decisions of the chairperson that amounted to lack of transparency, and whose conduct was also characterised by high-handedness, dictatorial mannerisms, and devoid of the principles of good corporate governance,” Wanderi’s letter reads in part.
“I took oath of office on September 2, 2021 to defend and protect the Constitution of Kenya, and to discharge my duties in accordance with the law, while upholding values of integrity and good governance — an oath I have executed diligently for the last 16 months.”
Wanderi noted that he was vindicated by the Supreme Court verdict, which ruled that the chairperson did not have exclusive jurisdiction to run the commission’s affairs alone.
An independent source told People Daily that as a result of the three resignations, the government is considering turning the tribunal into an inquiry to scrutinise what exactly happened during the counting and tallying of votes in the August 9 General Election.
“We need to know who else was involved in this matter apart from the commissioners, because had it succeeded, it would have been chaotic,” the source said, requesting anonymity due to the sensitivity of the matter.
National Assembly Deputy Speaker Gladys Shollei, a close ally of President Ruto, has indicated that the tribunal should investigate all “issues surrounding the announcement of the results.”
The tribunal headed by High Court Judge Justice Aggrey Muchelule is this morning scheduled to hold a status conference at the Kenya Institute of Curriculum Development (KICD). During the session, members are expected to agree on the rules and procedures to be followed during the hearings.
Whereas Kipkorir has confirmed that his client is determined to clear her name before the tribunal, two other lawyers – Apollo Mboya and Jotham Okome Arwa – who are acting for Cherera, and Nyang’aya and Wanderi respectively, said their clients will not appear before the tribunal which they said lacks jurisdiction over them now that they are no longer commissioners.
“Commissioner Masit feels a responsibility to her fellow Kenyans to prove that she has never disregarded her oath of office or her religious convictions in order to further her own political or personal interests,” Kipkorir told People Daily.
“She will appear before the tribunal to exonerate herself and tell Kenyans the truth.”
However, the tribunal has made it clear that it will make decisions it deems necessary relating to any individual who fails to honour its summons.
“Take further notice that in default of your attendance, in person or through your duly appointed advocates, on the said date and time, the Tribunal shall proceed to give such directions as it shall deem fit,” lead counsel Peter Munge said in a notice for status conference.
In response, lawyers of the three commissioners maintained that their clients had already disengaged from IEBC, tendered their resignations to the appointing authority and, therefore, have nothing to do with the tribunal.
“Having resigned as a commissioner of IEBC, our instructions is to convey that our client has no identifiable stake or legal interest or duty in the proceedings before the honourable tribunal and shall not, therefore, be participating in its proceedings,” said Mboya.
He accused the tribunal of having introduced foreign evidence such as a flash disk containing video clips of Cherera and that of Azimio leader Raila Odinga, which were never part of earlier proceedings of the National Assembly’s Justice and Legal Affairs Committee.
Yesterday, sources within the tribunal said hearings would continue “as long as its members have not been served with the resignation letters.
“Once we are served we will advise on the way forward,” said a member of the tribunal requested not to be named.
Two lawyers — Bob Mkangi and Gad Awuonda — said the three commissioners were right on grounds that since the tribunal had been formed with the sole purpose of determining their suitability to continue serving in IEBC, their resignation had removed them from its jurisdiction.
“Since the endgame of the Tribunal process is removal, it is common sense that the tribunal is not seized of the matter any further after the resignation,” said Awuonda, who, like Mkangi, was a member of the Committee of Experts that drafted the 2010 Constitution.
Several lawmakers, who are also lawyers, said the tribunal will cease to exist should all the commissioners resign.
Ainabkoi MP, who is chairperson of the Committee on Delegated Legislation, said that should all the four resign, the tribunal will have no business to transact.
“But even if one of them remains in office, then the commission must continue with its work as each of them should bear personal responsibility,” he said.
The sentiments were echoed by Gatanga MP David Muriu, who said the work of the tribunal would end should all the commissioners resign as it was set up under Article 251 of the Constitution.
“I would gladly advocate for the tribunal to be converted into an inquiry so that we can bring in all the commissioners on the table to find out what really happened and who were they working for,” he said.
JLAC is the Justice and Legal Affairs Committee of the National Assembly.