A defiant Wafula Chebukati has vowed to stay put at the Independent Electoral and Boundaries Commission (IEBC), accusing the three commissioners who quit on Monday of being unable to accommodate divergent views.
In a three-page statement, Mr Chebukati said that all was well at the commission despite the quitting of Connie Nkatha Maina (vice-chair), Dr Paul Kurgat, and Ms Margaret Mwachanya.
"The commission assures the public that its operations are on course and we remain focused on delivering our constitutional mandate," Mr Chebukati said in a statement.
"As the chairman, I am committed to the course of transforming the country's electoral management body to make it more responsive and professional."
The embattled IEBC chair said the Nkatha trio had not resigned out of principle, but “the real reason for their resignation is the plenary decision to hold commission secretary (Ezra Chiloba) to account.”
"Their action demonstrates lack of capacity to lead in difficult times and accommodate divergent views," said Mr Chebukati.
The commissioners, Mr Chebukati said, had a chance to air their grievances during a crisis meeting held in Naivasha on April 13, which he said they did not.
“They would also have introduced a motion to ask the commission chair the plenary decision,” Mr Chebukati said in the statement.
But in an admission of what bedevils the already crippled commission, Mr Chebukati said there was no mechanism to fill the four vacant posts.
“Parliament is yet to enact legislation providing for the recruitment of commissioners subsequent to the first replacement in the event a vacancy occurs,” said Mr Chebukati.
“As such, we are requesting the relevant government organs to act appropriately to ensure that the commission’s operations are not stifled.”
Mr Chebukati said the by-elections in Kinondo and Rugru county assembly wards would go on.
The returning officers, he said, had been gazetted and the polls will be supervised by commissioners Abdi Guliye and Boya Molu.
“In accordance with the law, the election results will be declared by the ROs and gazetted by the chairman,” he said.
Senior lawyers Paul Muite, Nzamba Kitonga, and James Orengo have argued that the fact that the commission was left with only three of the maximum seven commissioners makes it no longer tenable.
“This commission is cursed,” said Mr Orengo, the Senate minority leader.
“The resignations at the IEBC are a symptom of an incurable cancerous disease that bedevils the commission. Without a doubt it undermines the legitimacy of the Jubilee administration, and confirms that its election was an electoral fraud.”
Mr Muite warned that if the current IEBC were to continue transacting business, they risk the case of the anti-corruption commission which had cases thrown out because they were brought to court when the agency did not have commissioners.
The IEBC Act states that the quorum for the commission to conduct business is five commissioners, and an amendment to the law last year to reduce it to three, was last week quashed by the High Court as being unconstitutional.
“The remaining three commissioners cannot continue to conduct any business. They do not have quorum. They have two viable options: To resign now and let the new team be appointed, or that the vacant positions are filled,” said Mr Kitonga, who chaired the Committee of Experts that drafted the 2010 Constitution.
Senate majority leader Kipchumba Murkomen was the first to call for the Chebukati trio to follow the Nkatha trio and hand in their resignations as well.
“If they do not resign in seven days, we will then institute proceedings to ask Parliament to form a tribunal to investigate. If they are found guilty, they must go home. That is unless they do the honourable thing now and save the country this whole charade,” he said.
The Elgeyo-Marakwet senator said they had opposed the disbandment of the IEBC in the 2017 polls, saying “we had to put up with a difficult commission.”
“We all agree that we can even reduce the commission to three, just two of them and the chair and a very able secretariat. You find now that when they are too many, there are cases of idle commissioners who now go and intrude (sic) to the role of the secretariat,” said Mr Murkomen.