, NAIROBI, Kenya, Jul 13 – Emotions and tempers became the order of the day as IEBC commissioners appeared before a joint sitting of the National Assembly Justice and Legal Affairs Committee and that of Constitution Implementation Oversight Committee over a petition by Nyukuri Barasa that they be removed from office.
Commissioner Yusuf Nzibo struggled to hold back tears as he narrated the implications of the allegations linking him and former colleague Interim Independent Electoral Commission’s Douglas Mwashigadi to the Chickengate scandal.
“It has damaged not only my reputation but that of my family. I’ve had a very distinguished career in this country and I feel very hurt, knowing very well that I went to visit Smith&Ouzman (London) with a colleague of mine who has since died, he bled until we had to call the paramedics to come and collect him from the restaurant we were having dinner and none of those people came to visit Commissioner Mwashigadi and I had to look after him for four days, so every day when I read about Chickengate I feel very hurt because I have had a very distinguished career in this country,” said the Nzibo who is a renowned diplomat having served as High Commissioner in the UK, Netherlands, United States of America and Saudi Arabia among other nations.
Commissioners Thomas Letangule and Mohamed Alawi similarly had a difficult time when they were called upon to make their responses to the petition.
“If you remove us, I don’t where I will go with all this amount of knowledge and skill that I have gathered over the years I have been with the Commission. I am asking you to give this team a chance,” said Letangule.
Nzibo was speaking when he and fellow commissioners accompanied Chairman Issack Hassan before the committee to respond to a petition seeking their removal on the grounds of lack of integrity and incompetency allegations during the 2013 poll.
Tempers flared moments later after Hassan accused JLAC Chairman Samuel Chepkonga of introducing allegations which were not contained in the petition.
“We want to know whether the Committee is now the petitioner, now you are reading the Auditor-General’s report selectively, you are treating us as if he is the gospel truth, he is a liar , we can’t just sit here and listen to you repeat all the same lies by him, it’s not fair,” charged an irate Hassan, who had earlier told the Committee that he had filed for leave for contempt of court proceedings against the Auditor – General after he failed to comply with the court order directing him to expunge certain paragraphs in his Special Audit Report.
The Court on May 29, 2015 directed the Auditor General to delete the information in the Special Investigation Report that adversely mentioned the Commission Chairperson and any other information in the report that adversely mentions him.
“Chairman (Hassan) you are totally out of order, this is not a report prepared by Chepkonga neither is it prepared by JLAC. Mr Hassan, kindly read the Constitution, on the establishment of independent institution in this country like yourself, and they are supposed to report to Parliament and we are supposed to take note of this, and we are putting it to you and if you don’t want to respond, it is your right, but we will say you have responded to them, then you can go and respond to the tribunal. It is not for you to tell us what we are supposed to do,” Chepkonga asserted in his response.
In a statement prepared jointly, the IEBC boss said the petition by Bungoma resident Barasa Nyukuri is incompetent and in bad faith and urged the MPs to dismiss it as a work of a busybody.
“The Commission contends that the Petition has no merit and/or basis and lacks foundation both in fact and in law and as such ought to be dismissed as being incompetent and an abuse of the legal process. This petition should be dismissed for failing to meet the constitutional threshold underlined in Article 252 (1) of the Constitution. It is a veiled attempt by the Petitioner to canvass the issues raised and determined by the Supreme Court of Kenya. It contains no evidence, just bare allegations.”
The IEBC Commissioners now say the petition presented to the National Assembly will expose to subject them to double jeopardy.
“It is trite law that a person should not be subjected to different processes on similar allegations based on similar fact. This is the rule against double jeopardy. Whereas the Commission responds fully to this Petition, we are cognizant of the fact that there has been constituted a Joint Select Committee of Parliament (the Senate and the National Assembly) whose terms of reference include an inquiry into the allegations against the members,” Hassan said.
“In the circumstances, we are of the opinion that these parallel processes will expose us to double jeopardy. This is so especially where there is a real risk of the separate entities arriving at different conclusions. The Members are in a quandary as to which process they should submit themselves to.”
JLAC chairman Samuel Chepkonga advised Hassan and his Commissioners to move to court if they feel they have not been given a fair hearing or due process is not followed.
But Ol Joro Orok MP John Waiganjo who has been against the formation of the Select Committee instead said the poll officials should not allow themselves to be sucked into political machinations of the two leading coalitions.
“The idea of them being subjected to double-jeopardy is not far-fetched. I don’t think the commissioners should be made to appear before a process they don’t want, because I think that process was formed to get the demonstrators out of the streets,” he said.
In his presentation, the IEBC chief went on to call for the dismissal of the petition because it does not mention allegations against a specific commissioner and instead given ‘omnibus accusations’.
“The Petitioner alleges that the Commissioners are incompetent and lack integrity for various broad reasons. We wish to point out that there has been no finding on the lack of integrity of any member of the IEBC by the body constitutionally mandated to make such a finding. Moreover, we are inclined to believe that the allegation of incompetence cannot be levelled against the Commissioners collectively. It can only be made as against an individual, with the necessary evidence in support of the same. We further observe that the Petitioner has not distinguished the two grounds as the allegations in support of the grounds are so muddled up in the Petition,” he pointed out
The commissioners say most of the allegations in the petition such as the irregularities in the Voter Register in the last General Election were dealt with in the Supreme Court ruling of the 2013 presidential election petition filed by CORD leader Raila Odinga who lost to President Uhuru Kenyatta.