Dinah Ondari @dinahondari
Three Independent Electoral and Boundaries Commissioners (IEBC) officials who returned to work on Friday after a dramatic resignation in April have many hurdles to navigate before they can have their jobs back, it has now emerged.
Apart from having to face chairman Wafula Chebukati, whose credibility they had put into question when they resigned, the commissioners will have to contend with legal hurdles after the Law Society of Kenya (LSK) said it is preparing a constitutional petition against their return.
LSK chairman Allen Gichuhi yesterday revealed to People Daily that the lawyers’ body was preparing a petition which it will lodge in court in two days to protest the decision by the trio—Connie Nkatha, Margaret Mwachanya and Paul Kurgat.
“I cannot give the details of the petition but my counsel are preparing to lodge a constitutional petition in court concerning this matter. Once a person has resigned, there have to be consequences. You will see the petition in 48 hours,” he said on phone.
Meanwhile, Makueni Senator Mutula Kilonzo Jr, who is a lawyer, said the three should be subjected to a probe by a tribunal, as their actions amounted to gross misconduct, and breach of Chapter Six of the Constitution on Leadership and Integrity.
The senator read political mischief in the purported resignation by the three commissioners, saying it was a plot to distract Kenyans from the credibility crisis IEBC had been facing, but added that the three should not be allowed to get away with it.
“It is ridiculous! The fact that even the President has not come out to confirm or deny having received their letters is confirmation that they never wrote the letters in the first place,” he said.
“The manner in which they have conducted themselves amounts to gross violation of Chapter Six and any Kenyan or even Chebukati should petition Parliament to have tribunals formed to investigate them.”
Kilonzo’s sentiments echoed those expressed by various political leaders, including Amani National Congress’ Musalia Mudavadi, who accused the three of seeking to conceal irregularities committed during their tenure.
Mudavadi said a report by the Auditor General had revealed irregular procurement of gadgets adding that their return was an insult to Kenyans, and one which they should be punished for.
“It is this irregularity they want to conceal. The Auditor General has just released a report showing IEBC procured gadgets worth Sh900 million but the gadgets were never used,” he said during the homecoming party of Vihiga MP Ernest Ogesi. He called for the disbandment of the commission.
IEBC communication manager Andrew Limo confirmed that the commissioners on Friday sought audience with the chairman but the latter was absent.
“They wanted to meet the chairman and since he was not present we could only speculate that it is because of the ruling that said they had not properly resigned,” he said.
Limo, however, added that Chebukati’s powers in regard to denying or sanctioning their return were limited.
“He is not the appointing authority. His hands are tied,” he said.
In May, Chebukati wrote to National Treasury Principal Secretary Kamau Thugge and Head of Public Service Joseph Kinyua, seeking to have the three asked to return properties belonging to the commission.
In a response filed in court, Chebukati said he wrote to the three commissioners on April 20, asking them why they never reported to their offices or issued the commission with letters confirming their resignations. He also wanted the payment of salaries for the three commissioners stopped.
According to the Constitution, commissioners can only be removed from office over serious violation of the Constitution.
A person seeking the removal of a commissioner can commence the proceedings by presenting a petition to the National Assembly. The grounds for removal include gross misconduct or physical or mental incapacity to perform the functions of their office. Incompetence or bankruptcy can also be grounds for removal.
“The National Assembly shall consider the petition and if it is satisfied that it discloses a ground under Clause (1) shall send the petition to the President,” states Article 251, Section 3.
Nkatha and Mwachanya reported to their offices on Friday. Sources said Kurgat is set to join them today.
The commissioners claim they were basing their return on a ruling by Justice Wilfrida Okwany, who early this month said the commissioners just tendered their resignation via a press statement instead of writing to the appointing authority.
The judge said due to the anomaly, the commissioners were still in office since they failed to tender their resignation to President Uhuru Kenyatta.
Others who have questioned the commissioners’ move include Sabatia MP Alfred Agoi and his Lurambi counterpart Titus Khamala.
Meanwhile, Civil Society Reference Group Presiding Convener Suba Churchill opposed the return of the three commissioners, terming it illegal.
“They must be told in unequivocal terms that their attempt to return is inconsistent with the provisions of the Constitution that demands that all State officers demonstrate respect to the people, brings honour to the nation, dignity to the office and promotes public confidence in the integrity of the office,” he said in a statement.