Ways of going about IEBC officials removal

Independent Electoral and Boundaries Commission chairman Wafula Chebukati, flanked by commissioners Yusuf Guliye (left) and Boya Molu, addresses a news conference at Anniversary Towers, Nairobi, on April 20, 2018. PHOTO | ANTHONY OMUYA | NATION MEDIA GROUP

What you need to know:

  • But Mr Chebukati, Prof Guliye and Mr Molu will not just be pushed out of the office as they are protected by Article 251 of the Constitution.
  • They want assurances that they will not be prosecuted for any acts of commission or omission during their one-year stint in office.
  • Makueni Senator Mutula Kilonzo Jnr has opposed the idea that the remaining three commissioners be given a send-off package.

Senior government officials are mulling tough options of kicking out Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati and two other commissioners, the Sunday Nation has learnt.

The law provides that for any member of a commission to be removed from office, the person must have seriously violated the Constitution, committed gross misconduct, lack the physical or mental capacity to perform functions of office, incompetence or bankruptcy.

Those agitating for the removal of Mr Chebukati and the two remaining commissioners, Prof Abdi Guliye and Mr Boya Molu, have narrowed down to three options: going the tribunal way to investigate their conduct, make it impossible for them to work and force them to resign on their own, or a negotiated approach that will have them resign voluntarily.

RESIGNATION
Although the second option would be the most preferred since it looks less costly, the commissioners will likely not accept to resign unless removed by a tribunal or through a negotiated settlement.

A negotiated approach may give the commissioners the leverage to get favourable terms as it emerges that there is little in terms of evidence to incriminate Mr Chebukati and his colleagues, making the option of subjecting them to a tribunal undesirable.

Although Jubilee stalwarts like Senate Majority Leader Kipchumba Murkomen had initially toyed with the idea of setting up a tribunal, the ruling party reportedly on advice from its experts has gone slow on the proposal.

It is understood they view a tribunal as very disadvantageous as it is tedious, time consuming and expensive because of the allowances its members and staff will draw.

TRIBUNAL

But more importantly, the fear is that once it is set up, no one can tell what might come out from such a process.

National Assembly Majority Leader Aden Duale said he is working on a bill to amend the first schedule of the IEBC Act to establish a permanent panel that will be in charge of recruiting the commission chairman and commissioners whenever a vacancy arises.

“Parliament will in the next two weeks provide a regime on how the next commissioners will be recruited,” Mr Duale said.

Even the National Super Alliance (Nasa), which has supported the decision by IEBC to send its chief executive officer Ezra Chiloba on compulsory, leave seems to be conflicted on how to deal with the remaining commissioners.

Senate Minority Leader James Orengo on Monday had called for the immediate resignation of the remaining commissioners.

“There are no longer good or bad commissioners in IEBC. The organisation is cursed,” the Siaya senator said.

CONSTITUTION

But his National Assembly colleague and ODM chairman John Mbadi asked the remaining commissioners to stay put until modalities are put in place to reform the commission.

“The resigning commissioners refused to exit in public interest, but have now resigned for their own selfish interests.

"What we have at IEBC are a bunch of criminals who must be weeded out. But before we get them out we must come up with modalities of recruiting new ones,” Mr Mbadi said.

But Mr Chebukati, Prof Guliye and Mr Molu will not just be pushed out of the office as they are protected by Article 251 of the Constitution.

The IEBC chairman hinted as much when he addressed the media on Friday at the commission’s offices at Anniversary Towers.

He said the commission “must be allowed to carry out a conclusive financial audit on usage of public resources without interference”.

“We observe by way of introduction that the commission is a constitutional creature under Article 88 of the Constitution and its mandate additionally prescribed by Parliament under the IEBC Act.

"We have been created by the law, the chairperson and commissioners selected and appointed within the provisions of the law,” Mr Chebukati said.

SALARIES
Among the conditions the commissioners want met both by the Executive and Parliament before they vacate office is that they should be paid full salaries for their remaining term of service.

The current commissioners took office on January 20, 2017.

They have since served a year and three months of their six-year term.

Removing them now would mean that the taxpayer would have to pay them for the four years and nine months of their unserved term as well as 31 per cent of their gratuity as provided for in the gazette notice by the Salaries and Remuneration Commission of March 1, 2013.

They also want Mr Chiloba to withdraw the case he has filed in court to quash his forced leave and after which he also must leave with the commissioners.

SEND-OFF PACKAGE

They also want assurances that they will not be prosecuted for any acts of commission or omission during their one-year stint in office.

“If they get a negotiated deal, they are willing to leave so as not to waste public funds, drawing salaries when they know that they cannot perform any function of the commission,” a source at IEBC said.

If the government was to negotiate, it will only do so with Mr Chebukati, Prof Guliye and Mr Molu since the other three resigned on their own volition and are only entitled to gratuity for the period they have served.

However, Makueni Senator Mutula Kilonzo Jnr, who was part of the defunct joint parliamentary select committee that negotiated a deal for the former IEBC commissioners, has opposed the idea that the remaining three commissioners be given a send-off package.

“The reason we agreed to talk to the former commissioners was because there was no time.

"The elections were around the corner and we also needed time to recruit other commissioners.

"Had we held our ground because the accusations against them were real, we would have dragged into the elections,” Mr Kilonzo said.

He said it is a bad policy “for people to mess up and demand an exit package”.

AUDIT
In the meantime, the post-election evaluation which is to audit the 2017 elections could be among the key programmes of IEBC, which will immediately suffer from the current paralysis brought about by the lack of quorum following the resignation of three commissioners, vice chairperson Consolata Maina, Mr Paul Kurgat and Ms Margaret Mwachanya.

The post-election evaluation is a requirement of the law and former IEBC commissioner Thomas Letangule says with the commission lacking quorum to transact business, the exercise may stall.

“The audit generates a report which by law must be tabled before Parliament,” Mr Letangule said.

The former commissioner also said the situation the current IEBC now finds itself in is not good for the country.

“This is a very sensitive commission which ideally should not have a vacancy. Anything can happen.

"That is why you realise that our removal was clearly negotiated to enable us to vacate office at the same time the new ones were coming in,” he said.