Options for sending IEBC commissioners home

Anti-riot police officers try to put off fire that was lit along Migori -Isebania road by anti IEBC protestors in Migori town on May 16, 2016. (PHOTO: DENISH OCHIENG/ STANDARD)

The embattled electoral commissioners can be forced out of office on incompetence and integrity grounds.

They can also be prevailed upon to resign voluntarily on condition that they get a send-off package for leaving office before expiry of their tenure.

Another option to reconstitute the Independent Electoral and Boundaries Commission (IEBC) is through a proposal before the National Assembly seeking to reduce the number of commissioners to five.

According to Chapter 16 of the Constitution, the nine commissioners can be ejected from office if they fail to meet leadership and integrity requirements.

Lawyer Paul Muite says that there is enough evidence that some of the commissioners have contravened the integrity requirement.

He also says that it is possible for a petitioner to argue that the commission is incompetent, thus providing adequate grounds to remove the commission from office legally.

“Incompetence is one of the grounds on which the commission can be removed. The second ground is Chapter Six (Leadership and Integrity). And again, it would not be difficult to get evidence to support both,” says Mr Muite who told IEBC boss Issack Hassan to decide which way they would want to exit from office.

Mr Hassan has been adversely mentioned in the ‘Chickengate’ scandal, in which directors of UK printing firm Smith & Ouzman were convicted of paying out bribes totalling Sh59 million to the country’s electoral and examination officials.

He has since denied the allegations, and has appeared before the Ethics and Anti-Corruption Commission (EACC) for interrogation.

VACATE OFFICE

And today, Hassan and his fellow commissioners will appear before Parliament’s Public Accounts Committee (PAC) after being mentioned in the committee’s report for the loss of over Sh4 billion through fraudulent procurement of Biometric Voter Registers (BVR’s) in the 2013 elections.

Hassan and his team have made it clear to the Coalition for Reforms and Democracy (CORD) that they will only go home through the legal means.

But the Opposition and some civil society organisations want the commissioners to vacate office voluntarily since a majority of Kenyans have lost faith in the agency.

Narc Kenya leader Martha Karua prevailed upon the commissioners to voluntarily resign since a majority of Kenyans were not ready for another election presided over by the commission. And Kisumu Senator Anyang’ Nyong’o said the commissioners should stop hanging on to the Constitution, but should read the mood of the country.

Another option, though now overtaken by events, was the Ugenya MP David Ochieng’s proposal to amend the Constitution to move the next election from August to December.

This would have technically locked out the Hassan-led team from presiding over the polls since its six-year term ends in November 2017. The bill was rejected by the National Assembly.

Currently, there are consensus proposals before the Justice and Legal Affairs committee being discussed and which the Opposition MPs in the committee say will pave way for the exit of current IEBC commissioners from office.

“What we are looking at are ways of recruiting new commissioners in case of vacancies at the IEBC. Currently, the law is not clear on what happens once there is a vacancy in the commission,” said David Ochieng (Ugenya), a member of the committee.

The current law on the recruitment of new commissioners was enacted under the Grand Coalition government, where retired President Mwai Kibaki and CORD leader Raila Odinga were allocated two slots each on the recruitment panel.

But with the law currently silent on the process, President Uhuru Kenyatta has a free hand in picking four of the seven commissioners.

This grey area is definitely going to present another battleground between the rival coalitions in the event that the commissioners vacate office.