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 The government is reportedly walking a tightrope over the send-off package for the three former Independent Electoral and Boundaries Commission (IEBC) commissioners who opted to resign instead of facing a tribunal established to probe their conduct.

With the fate of their colleague, Irene Masit who appeared before the tribunal chaired by Justice Aggrey Muchelule having been sealed, focus now turns to how the government will treat vice-chair Juliana Cherera, Justus Nyang’aya and Francis Wanderi.

The four, often referred to as the “Cherera Four”, rejected the presidential election outcome declared by electoral body chairman Wafula Chebukati, saying the process was “opaque”.

While lawyers say the government has no option but give the four their full send-off package, sources intimated to People Daily that opinion is divided within government with a section saying the former commissioners should be sent home “empty handed.”

Masit appeal

But some officials are of the opinion that they paid their full benefits.

What is clear is that while Masit will remain banned from holding any public office, unless her intended appeal succeeds, the three are free to serve in any position in government.

“The three commissioners having resigned and their resignation having been received by the appointing authority, President William Ruto, and the Tribunal having concluded its proceedings, the government should now proceed with speed to process their terminal benefits,” lawyer Apollo Mboya, who has been representing Nyang’aya, told People Daily yesterday.

Mboya, however, said the government had left the commissioners in the dark over their fate as it had not acknowledged their resignation.

“Since they followed the laid down procedure while tendering their resignation, we hope they will be paid what is due to them,” Mboya said.

The lawyer said the fact that the tribunal only made a recommendation on Masit is clear proof that the government had recognised the resignation of the three.

Landmark ruling

On Wednesday, President Ruto sacked Masit after the tribunal recommended her removal for gross misconduct. Sources however told PD that she is considering challenging the tribunal’s findings in the High Court.

According to some lawyers, the government has two options in dealing with the former commissioners.

In the first option, the three are entitled to terminal benefits for the period they had served before resigning.

This, according to those in support of the idea, is in tandem with a landmark Employment and Labour Relations Court ruling that declared it illegal to deny dismissed government officials pension, gratuity and other benefits.

The law states that such an officer, with a fixed term like the IEBC officials, is entitled to 31 per cent of their annual salary for the term served. The commissioners earn an annual gross salary of Sh9.2 million.

Should this be applied, since Cherera, Nyang’aya and Wanderi earned Sh765,188 with a basic salary of Sh459,113, a uniform house allowance of Sh150,000 and a salary market adjustment of Sh156,075, their pensionable pay would be based on the monthly basic salary and not the allowances.

Four years

In accordance with the Salaries and Remuneration Commission (SRC) guidelines, the calculation for their send-off package would commence from their date of appointment in August 2021 till the day they resigned in December 2022.

But other lawyers say the former commissioners should be paid for the years served as well the four and half years that had been left in their service. The term of service for the three – and Masit – was to end in August 2028.

Lawyer Bob Mkangi argued that the three commissioners should not be paid for the remainder of their term since they resigned from office voluntarily.

“They can only be paid for the term that they have served and not the remaining years because they were not forced out,” Mkangi said.

The former member of the Committee of Experts that fine-tuned the final draft of the 2010 Constitution said Cherera, Nyang’aya and Wanderi should have negotiated with the government over their send off package before resigning.

“This was a goof on their part. They should have engaged the government in negotiations to be paid for the remainder of their term. Because of that loophole, the government will only pay them for the one and half year served,” says Mkangi.