Anxiety has gripped the Independent Electoral and Boundaries Commission (IEBC) staff as chairman Wafula Chebukati and two other commissioners prepare to proceed on terminal leave on Monday in the midst of turmoil within the agency.

Sources have told the People Daily that Chebukati was set to proceed on terminal leave on October 17, ahead of the end of tenure on January 17. However, some government operatives want him to remain on board to give them time to purge four commissioners who disowned the results of the August 9 presidential election.

When the commission was conducting the election, Chebukati fell out with the four commissioners, including his deputy, Juliana Cherera, who accused him of failing to consult them on critical matters affecting the election. The four later said they would not own the results that Chebukati announced declaring William Ruto winner of the presidential race.

Sources have indicated that some of President Ruto’s allies are pushing for the removal of the four; Cherera, Justus Nyang’aya, Francis Wanderi and Irene Masit through a parliamentary process.

Unless removed from office, the four are set to serve until September 2026.

The People Daily has learned that a group of legislators are preparing a notice of motion to bring the matter to the floor of the House before Chebukati officially retires. He is scheduled to call it a day alongside commissioners Abdi Yakub Guliye, and Boya Molu, who will have also completed their six-year non-renewable tenure at the commission.

Shortlisted for PS job 

The IEBC Act, 2011, stipulates that members of the commission, who serve on a full-time basis, shall be appointed for a single term of six years and shall not be eligible for re-appointment.

The now retired President Uhuru Kenyatta appointed Chebukati, Guliye and Molu to the commission. Chebukati replaced Ahmed Issack Hassan after he and other commissioners were removed from office following protests by opposition politicians led by the then Nasa leader Raila Odinga.

Should the three proceed on terminal leave as scheduled, the commission will be left in the hands of the four “rebel” commissioners who distanced themselves from President Ruto’s victory and sided with Raila, who was this year the Azimio-One Kenya Coalition’s presidential candidate.

Incidentally, Molu is one of the shortlisted applicants for the position of Principal Secretary. Interviews for the position start today and end on October 22, meaning that if he becomes successful, he will transition to the new role as soon as he retires from IEBC.

As the scenario unfolds, opinion is now divided within government circles, with some leaders reportedly urging Chebukati and the two commissioners to hold on until January 17 to give the government time to push out their four colleagues.

Should this happen, then there will be a major change within the commission with new faces expected to take over at the end of the Chebukati team’s tenure and this could have far-reaching ramifications given the critical role experience plays in running successful elections.

What is complicating the case for the four commissioners is that in addition to disagreeing with Chebukati on election results, they filed affidavits at the Supreme Court supporting Raila’s prayers to have Ruto’s win overturned and the election outcome declared null and void. The court threw out Raila’s petition and censured IEBC and Chebukati for failing to work as a team. The judges recommended a raft of measures to make the commission and its chairman more accountable to the public, other commissioners and commission staff.

Even before the dust from the election can settle, three petitions have separately been filed in both the National Assembly and Senate seeking the removal of the four commissioners on grounds of their conduct during the last General Election, pointing to a concerted effort to ensure they leave office before the end of their constitutionally guaranteed tenure.

Bobby Mkangi, an expert in electoral laws, has, however, warned that the country must tread carefully lest it finds itself in a constitutional crisis where IEBC shall remain operational without commissioners.

“That would mean that all policy and mandates of the commissioners will remain in abeyance until such a time when IEBC shall have a structurally constituted commission,” said Mkangi, who was also involved in drafting the current Constitution.

Separate petitions

Whereas impending by-elections can proceed as scheduled under the supervision of IEBC secretariat, Mkangi warned that problems would arise in case of petitions arising from such polls.

Last week, Nyandarua Senator John Methu filed a petition in the Senate that sought to have charges drawn against Cherera, Nyang’aya, Wanderi and Masit for allegedly seeking to thwart the will of voters on August 9.

The motion also requests that the Senate Standing Committee on Justice, Legal Affairs and Human Rights, executes Supreme Court recommendations regarding IEBC’s operations.

Last month, Garissa Township MP and Defence Cabinet Minister nominee Aden Duale and former Principal Secretary Irungu Nyakera of Farmers Party filed two separate petitions in the National Assembly seeking the removal of the four.

Duale and Nyakera want the four removed on the grounds of gross violation of the Constitution and a breach of their oath, arguing that they do not have legitimacy to hold State offices as electoral commissioners.“The commissioners’ conduct amounted to a betrayal of public trust of the people of Kenya, thereby rendering them unfit to continue holding their constitutional offices and or acting as such,” reads Duale’s petition in part.

 Swore affidavits

Duale says the commissioners’ conduct was made for selfish reasons known to themselves and not in the best interest of the people of Kenya. “The commissioners proceeded with their treacherous scheme in the Supreme Court and swore affidavits based on falsehoods, a fact the court noted in its decision,” Duale says in his petition.

Yesterday, he maintained that the Kenya Kwanza team was doing “everything possible” to expedite the removal of the four before Chebukati exits to avoid a scenario where one of them would be in charge.

“We are glad to note that parliamentary committees shall be in place by the end of this week so that we start pushing fast some of the pending issues such as the IEBC one,” Duale said.

According to Nyakera, the conduct of the four was reckless, selfish and devoid of the national values of patriotism as provided for in Article 10 of the Constitution.

“The Farmers Party believes that this petition to the National Assembly is critical to entrenching the value of the IEBC in the growth of democracy and guide the code of conduct by IEBC officials in subsequent elections,” Nyakera says in his petition.

The process of removing a commissioner is lengthy and tedious, leading to fears that the commission could find itself without commissioners if the clause for the removal of the four is activated at the same time that Chebukati and his two allies are also preparing to exit.

Lawyer Gad Awuonda, a former member of the Committee of Experts that drafted the 2010 Constitution, told People Daily that the process could drag on untill April, and this risks paralysing the commission’s operations.