The Director of Public Prosecution Keriako Tobiko on Saturday ordered the police and anti-corruption commission to investigate top officials at the electoral commission over irregularities touching on last month’s elections.
Mr Tobiko gave the head of Directorate of Criminal Investigations Ndegwa Muhoro and the Ethics and Anti-Corruption Commission (EACC) CEO Halakhe Waqo 21 days to report back to him.
“I write therefore and pursuant to the provisions of Article 157 (4) of the Constitution… of the Elections Offences Act 2017 to direct and require you to, undertake jointly thorough, comprehensive and expeditious investigations into the irregularities and illegalities found by the Supreme Court to have been committed by the IEBC in relations to the presidential elections with a view of establishing whether electoral and or other criminal offences may have been committed by the IEBC officials,” he said.
This came as the electoral commission is on Monday expected to give a comprehensive response to conditions set out by Nasa to be met before they can take part in the repeat presidential election slated for October 26.
The decision, in the form of writing, could be the turning point in an already poisoned environment as the opposition holds that any indication the Independent Electoral and Boundaries Commission (IEBC) is not addressing what they call irreducible minimums will not only see them boycott the poll but also ensure it does not take place.
Suna East MP and ODM director of elections Junet Mohamed told the Nation that commission chairman Wafula Chebukati had promised to get back to them Monday.
“We should be getting their feedback tomorrow on what we want done before we can take part in the elections. Like our candidate Raila Odinga has said before, we will be foolish to allow ourselves to be led to a slaughterhouse presided over by Jubilee,” he said.
TheNation also established that the Commission was set to meet with President Kenyatta and Mr Odinga on Wednesday.
The meeting which had initially been set for Wednesday last week was rescheduled to allow the parties study details of the Supreme Court judgement. It will take place at the Bomas of Kenya, the national tallying centre.
“We want to move forward together. Once we meet them, the whole preparations will be thrust back on course after the Supreme Court gave the full judgment,” a commissioner confided to us yesterday.
The official said that majority of what Nasa was demanding was, “doable but we are careful to do this in such a way that we also keep the confidence of their Jubilee competitors.”
IEBC’s Communications Manager Andrew Limo confirmed the Wednesday meeting but would not comment on the planned response to Nasa.
“The commission is keen to explain to the candidates what we are doing towards achieving free and fair presidential elections. We hope to do so on Wednesday,” he said.
The opposition’s list of irreducible minimums broadly consists of personnel changes at IEBC, reforms on technology for election, identification of a new printer for the ballot papers as well as operational and logistical reforms.
Foremost on Nasa’s list of demands is the personnel changes. For this, Nasa has provided a list of 11 officials including IEBC commissioner Abdi Guliye, CEO Ezra Chiloba and deputy CEO Betty Nyabuto, who should be shown the door.
The list also includes deputy CEO Marjan Hussein Marjan who was recently appointed by IEBC chairman Wafula Chebukati to head the project team for the fresh elections, directors James Muhati (ICT), Immaculate Kassait (voter registration and electoral operations), Praxedes Tororey (legal and public affairs, who has already retired) an adviser to the CEO Moses Kipkogey, Sidney Namulungu, Nancy Kariuki and Silas Rotich.
Besides Mr Marjan, others in the black list of Nasa but who were recently appointed to the project team are Dr Namulungu, Ms Kariuki and Mr Rotich.
Tobiko’s move comes hot on the heels of requests by both the Jubilee and Nasa for him to institute investigations on IEBC officials they both accuse of meddling in last month’s polls.
Nasa had on Friday given Mr Tobiko 72 hours to file charges against officials accused of bungling the elections, saying they would also pursue private prosecution.
Mathare MP Anthony Oluoch, whose firm AT Olouch and Company Advocates wrote to the DPP said the decision of the Supreme Court did not exonerate any member of the commission.
“Our express instructions are that the commissioners and members of the secretariat not only committed criminal acts of which they should be held personally responsible, but also aided and abetted the commission of offences under the Elections Offences Act, the Public Procurement Act, the Elections Act and breaches of the Constitution,” the MP said Friday.
On Saturday, the head of campaign and Nasa principal Musalia Mudavadi said they were hoping Mr Chebukati will satisfactorily address all their grievances. “We are meeting tomorrow to study their response; we will then address our supporters appropriately,” he said from outside the country. The ANC party leader is understood to be on a business trip abroad but returns Monday.
Mr Chebukati on September 4 acknowledged through a letter that he had received the list of “irreducible minimums” and promised a response.
“I write in acknowledgement of your said letter and confirm that the commission is currently studying the content of the subject letter as well as the annexure thereof dubbed “Nasa position paper on irreducible minimums before the fresh elections are held,” he wrote adding: “I advise that we will shortly respond substantively to the concerns and recommendations expressed thereof. The commission remains committed to engage meaningfully with all stakeholders including the Nasa coalition.”
On Friday, Mr Odinga was taken through legal analyses of the Supreme Court Judgment that annulled President Uhuru Kenyatta’s win last month at Okoa Kenya offices.
The team under Nasa’s lead counsel in the petition James Orengo is understood to have devised the next war-front with Jubilee arising from the judgment. The Supreme Court voided Mr Kenyatta’s victory on grounds the IEBC flouted election laws last month.
Meanwhile, as preparations get into high gear for the repeat presidential election on October 26, the Nation has learnt that security agencies have identified more than 30 electoral officials suspected of being the source of leaks to the opposition.
Multiple sources said some of the officials were named by Jubilee Secretary-General Raphael Tuju in the September 6 letter to the chairman of Independent Electoral and Boundaries Commission.
In the said letter, Mr Tuju had named Marjan, who heads the project team for the fresh election, Salome Oyugi, Decimah M’mayi, Chrispine Owiye, Joseph Ayatta, Joyce Ekuam, Tabitha Mutemi, Linus Onyango and Caroline Manyange accusing them of being partisan.
“Given the fact that acts of omission or commission that rendered the (presidential) election null and void originated from the IEBC staff, we hereby register our strong objection to the deployment of the above to be in a position to run the process,” Mr Tuju had said in the letter.
And now, the government security apparatus is reported to have joined in to track the movements and communication of the officials.
A majority of those in the security agencies’ radar are based at Anniversary Towers while others are drawn from field offices.
Identifying and placing officials on government watch comes on the backdrop of a series of leaks of internal memos from Mr Chebukati to CEO Ezra Chiloba demanding answers on the failures that characterised the August 8 presidential election.
The latest of the leaks was a memo dated September 18 (IEBC/CP/CON/A/2/VOL.1) from Mr Chebukati, directing Mr Chiloba to, among other things, immediately suspend ICT director James Muhati, ICT co-ordinator Paul Mugo and ICT officer Boniface Wamae for having fallen short of assisting the commission successfully to discharge its “collegial and constitutionally enshrined mandate” to deliver free, fair and credible elections. Following the leak, IEBC issued a brief statement describing the incident as “regrettable.”
“The new leaked doc was internal and still under discussion by the commission. No final decision has been taken on the issues. Regrettable,” the commission said on its official Twitter handle.
By the time of going to press, it was unclear whether or not the three ICT officials had been suspended as directed by Mr Chebukati.