Tribunal to start work as Masit fails to stop process
A tribunal set up to determine the fate of the four Independent Electoral and Boundaries Commission (IEBC) officials commences its hearings this morning.
The development comes after the High Court declined to stop the proceedings following a lawsuit filed by commissioner Irene Masit seeking to stop the exercise.
Masit wanted the High Court to stay the proceedings pending the hearing and determination of a suit she has filed challenging the four petitions filed against her.
Justice Mugure Thande, however, declined to grant the conservatory orders saying she wanted to hear the petition first.
“I decline to grant conservatory orders until I hear the petition on merit. In view of the urgency of the matter I direct the petitioner to file the submission on the petition and the notice of motion by 22 December for highlighting on 23rd December,” said the judge.
Sources close to the tribunal said it will convene the first session at the Kenya Institute of Curriculum Development (KICD) to look into the conduct of the commissioners.
“We are commencing the proceedings tomorrow starting 9am at the KICD,” said a source within the tribunal who sought anonymity because he is not allowed to speak on its behalf.
Masit is the last commissioner standing after three of her colleagues led by former vice chair Juliana Cherera, Justus Nyang’aya and Francis Wanderu resigned rather than face the tribunal.
Masit, through lawyer Donald Kipkorir, had moved to court seeking to stop the proceedings to allow her time to argue her case in detail in court.
The lawyer argued that the four petitions filed before the National Assembly have no supporting documents and affidavits.
“All the petitions refer to two matters in support of their allegations in the petition…that there was division in the IEBC commission where my client and three other commissioners disagreed with the chairman and the other two commissioners and that my client and the other three commissioners held a press conference at Serena. Those are the only allegations that are being relied on by the petitioners,” said Kipkorir.
Impartiality
Kipkorir argues, the allegations were before the Supreme Court in the presidential petition and the Supreme Court dealt with them and made a finding on them.
“We are going to demonstrate that once those issues had been determined by the Supreme Court no other tribunal can revisit them. Supreme Court sits as an election court and if they found that the allegations against my client warranted further investigations, they would have said so. They did not make any recommendations against my client or any other commissioner and they were alive to the both issues raised by the petitioners,” argued Kipkorir.
The lawyer further argued that they had raised the issue of impartiality of the parliamentary committee that was chaired by a lawyer who was part of the legal team that represented President William Ruto in the Presidential petition.
“We have raised the issue of bias and that the petition does not comply with the Standing Orders of the National Assembly... Our petition and Notice of Motion establish a prima facie case and what we are asking is for you to give us time to argue our application in detail and on merit,” he said.
Justice Thande, however, declined to issue the orders and directed the matter to be heard on December 24.
The application comes even as the embattled commissioner filed an application before the tribunal objecting to the hearing of her ouster proposal on grounds that it does not have jurisdiction to do so.
Masit says the petition before the tribunal lacks constitutional, statutory and factual foundation.
Tribunal chair
She wants the high court to hear and determine the petition that is already before it to a conclusion, adding that it has supervisory jurisdiction over subordinate courts.
The tribunal is chaired by Court of Appeal judge Aggrey Muchelule and comprises Carolyne Kamende Daudi, Linda Gakii Kiome, Mathew Njaramba Nyabena, and retired Colonel Saeed Khamis.
Kibet Kirui Emmanuel, Irene Tuntu Neboe, Peter Munge Murage and Zamzam Abdi Abib are also part of the tribunal.
“The mandate of the Tribunal shall be to consider the petition for the removal of Juliana Cherera, Francis Mathenge Wanderi, Irene Cherop Masit and Justus Abonyo Nyang’aya from office as members of IEBC and to inquire into the allegations therein,” reads the special gazette notice in part.
“Having received and considered the petition of the NA and in the exercise of the prerogative vested in the Head of State and Government by Article 251 of the Constitution, I William Samoei Ruto, President and Commander-in-Chief of the Kenya Defence Forces, do hereby direct that the four are hereby suspended from office with immediate effect, and a tribunal to inquire into the matter be and is hereby appointed,” said President William Ruto while appointing the tribunal early this month.
Ruto indicated that the tribunal would submit a report to him after the completion of the inquiry before a decision is made on the four commissioners.
Masit has maintained that she will not resign like her colleagues and will instead unleash a bombshell during the proceedings.
“I am not ready to quit and Kenyans should expect a bombshell during my appearance before the Justice Aggrey Muchelule-led tribunal,” Masit was recently quoted as saying.
