, NAIROBI, Kenya, May 9 – The Independent Electoral and Boundaries Commission (IEBC) is now backing a petition filed by activist Okiya Omtatah seeking to stop the National Assembly from removing three remaining commissioners from office.
In a responding affidavit filed at the High Court’s Constitutional and Human Rights Division last Friday, Chairperson Wafula Chebukati backed an application lodged by Omtatah on April 26 inviting the court to grant conservatory orders that would effectively bar the National Assembly from restructuring the commission by sending Chebukati and Commissioners Abdi Guliye and Boya Molu packing.
In his application, Omtatah challenged the constitutionality of the fifth paragraph in the Second Schedule of the Independent Electoral and Boundaries Commission Act (2011), which sets the quorum for commission plenary sessions at five.
Omtatah argued that the law was inconsistent with Article 250 (1) of the Constitution which requires a commission to have at least three commissioners and a maximum of nine.
The activist argued that IEBC still meets the constitutional threshold of three commissioners which he submitted should be interpreted as the requisite quorum, rendering the quorum set under the IEBC Act invalid to the extent of its inconsistency with the Constitution.
He asked the court to protect the three remaining commissioners even as the replacement of commissioners who resigned in April is sought.
It was Omtatah’s submission that Chebukati, Guliye, and Molu, could not be removed from office on the basis of a quorum set in the IEBC Act which the commission is deemed to have fallen short of, since the resignation of three other commissioners on April 16.
Omtatah had moved to court amid heated debate on the fate of the three remaining IEBC Commissioners after Vice Chairperson Consolata Nkatha, and commissioners Paul Kurgat and Margaret Mwachanya announced their decision to quit citing Chebukati’s failure to provide leadership.
The exit of Nkatha, Kurgat, and Mwachanya brought to four, the number of commissioners that have left IEBC with Roselyn Akombe having been the first to call it quits on October 18 last year, a week to the October 26 repeat presidential poll.
In his replying affidavit to the court on Friday, Chebukati also premised his support for Omtatah’s petition on an ongoing internal audit probing the use of Sh 46 billion in 2017 election-related tenders.
According to Chebukati, the ongoing investigation could not be concluded should the remaining commissioners be forced to leave the commission prematurely.
The commissioning of the audit by Chebukati was taken on April 6 following a divisive plenary vote that saw Chebukati, Molu, and Guliye win a motion to send IEBC Chief Executive Officer Ezra Chiloba on a three-month compulsory leave to allow further investigations into the award and execution of six poll tenders.
Nkatha and Kurgat are said to have walked out in protest with Mwachanya reportedly missing out on the vote as he was away on official duty.
In an interesting turn of events, however, Nkatha, Kurgat, and Mwachanya announced their resignations on April 16.
“The Commission Chairperson has failed to be the steady and stable hand that steers the ship in difficult times and give direction when needed,” the three said in a joint statement at the time.
“Under his leadership, the Commission boardroom has become a venue for peddling misinformation, grounds for brewing mistrust, and a space for scrambling for and chasing for individual glory and credit,” they remarked.
On April 13, Chiloba however lost a motion at the Employment and Labour Relations Court where he had moved to stop the mandatory leave imposed on him through a majority vote taken by the commission plenary.
“It would be prudent in the view of the court to have the full facts before issuing any orders,” Justice Stephen Radido ruled while declining to issue ex-parte orders sought by Chiloba through his lawyer Andrew Wandabwa.
In his affidavit, Chiloba had told the court that the decision to have him go on compulsory leave was prejudicial since he was not accorded an opportunity to defend himself.
“The purported decision was hastily arrived at by three commissioners without affording me an opportunity to answer to any of the allegations including responding to the internal audit report,” he said.
He also faulted Chebukati for convening a plenary meeting without following due procedure with regards to quorum.
“The purported decision was arrived at without the requisite quorum in terms of the number of Commissioners required for the Commission to transact business as envisaged in the Second Schedule to the IEBC Act,” he added saying his exclusion in the plenary, as Commission Secretary, meant that the meeting was not duly constituted.