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Embattled Independent Electoral and Boundaries Commission (IEBC) Commissioner Irene Masit yesterday accused the tribunal investigating her conduct during the last General Election of being motivated by politics rather than facts of law.

Masit, through lawyer Donald Kipkorir, accused the tribunal chaired by Court of Appeal judge Aggrey Muchelule of lacking any legal basis or evidence to implicate her in a plot to tilt the outcome of the last presidential election in favour of the Azimio la Umoja candidate Raila Odinga.

 “Chairman, in the book of Matthew 7:26-27 our Lord Jesus says, a foolish man builds his house on sand, when the rains and winds come it is swept away. The entire case before you my Lord is built on sand,” he said.

Dt Kipkorir accused the tribunal of assuming the role of the prosecutor rather than of advising its appointing authority.

He further accused the lead counsel, Peter Munge of encroaching on the mandate of the tribunal instead of playing their role as the lead counsel.

The lawyer also took a swipe at the Muchelule tribunal, saying it had gone out of its way to own the witnesses who testified against Ms Masit.

“Another mistake or error by this tribunal is owning the witnesses as your own, the witnesses belong to the prosecution… the lead counsel also erred in summoning only inculpatory witnesses,” claimed Kipkorir.

Tribunal failings

He further faulted the tribunal for failing to give a chance to the people adversely mentioned by the tribunal.

Kipkorir noted that the accusation against Ms Masit and her three former colleagues, Juliana Cherera, Francis Wanderi and Justus Nyang’aya was that they tried to subvert last year’s presidential polls.

He, however, argued that the manner in which presidential election results are declared was clearly set out in the constitution.

Kipkorir argued that there was no evidence produced to show Masit’s culpability and gross misconduct in the presidential elections.

He spoke as the tribunal announced that it was retiring to make its findings.

“We will retire as members of this tribunal to consider the evidence that was before us, consider the submissions, consider the law and consider the constitution and find out what kind of recommendation we will give to the appointing authority in relation to the task that was given to us through the appointment,” said Justice Muchelule at the end of the submissions.

He noted that there had been criticisms, including being asked to deal with their conscience in the matter and they shall consider every criticism to enrich the process.

Responding to Kipkorir’s submissions, the lead counsel Munge also turned to the Bible to persuade the tribunal to find that Masit was not suitable to be a commissioner and recommend her removal from office.

Witnesses called

Munge argued that the 11 witnesses called to testify before the tribunal had laid facts of breach of law by the embattled commissioner.

“I quote numbers 32.23…Which says be sure your sins will find you out. In this case  Commissioner Irene Masit  has since been found out by her colleagues; the Chairperson and two commissioners…she opted not to challenge that…we submit the proper recommendation is  for her removal… She is not fit at all to be a commissioner of an Independent Commission,” Munge argued.

He added that the evidence of bribery, trying to force a run-off by moderating results was never challenged by Masit during the entire process of hearing the case.

“There was evidence that specific people who are aligned to one political divide, went to the rooms where Masit and her ex-colleagues stayed and she did not rebut that evidence and therefore that evidence was left unchallenged,” argued Munge.

Munge said even though the other three commissioners opted to resign, there is a need to ensure that there is no recurrence of what happened in the August 2022 presidential polls

“What the commissioners did could provoke animosity and interfere with the tranquillity of this nation…There is clear evidence that the commissioner took sides in the last presidential polls,” Munge said

Munge faulted Kipkorir for attacking the tribunal saying lawyers cannot take advantage of their position and through unsubstantiated facts, to attack integrity or to make allegations of fact which are not substantiated.

“If my colleague wanted to, he should have taken the witness stand and presented evidence to support his claims. With the respect, I urge you to disregard all those submissions or  intention to intimidate the tribunal with unsubstantiated facts. There is no evidence, no affidavit, nothing whatsoever,” argued Munge.