The Independent Electoral and Boundaries Commission has made an about turn over quorum hitch with the three commissioners saying legally it can make decisions.
IEBC has also denied committing contempt of court maintaining that that the orders reinstating embattled Commission Secretary Ezra Chiloba had not been served to them.
The electoral agency had decried that lack of replacement of the Commissioners who quit for various reasons was making it difficult for the plenary to have a quorum in which key policy decisions would be made.
The commissioners Wafula Chebukati (Chairman), Boya Molu and Prof Abdi Guliye told the National Assembly’s Justice and Legal Affairs Committee (JLAC) that after seeking legal and expert opinion, they were free to operate as a full commission.
This is despite the fact the IEBC Act puts the quorum for a plenary of the meeting at four after the law was amended to have the commissioners reduced from nine to seven.
Chebukati at the same time raised an alarm that activities at the commission risk grounding to a halt as they have not received any money from treasury since April.
“We have pending bills of Sh 1.4 billion and have not even paid those who supplied us with various materials for last years’ general elections,” said Chebukati.
Chebukati while appearing before the William Cheptumo led JLAC said that they sought the legal opinion from the Attorney General Paul Kihara but were informed that its only after a case on quorum hitch pending at the High Court is determined that he can make a conclusive legal opinion.
“We sought a legal opinion from the Attorney General and he said he will only give an opinion after the determination of the petition 165 of 2018. The Petitioner argues that the commission as presently constituted cannot preside over any by-election,” said Chebukati.
There are three by-elections in Baringo South (National Assembly), North Kadem and Bobasi Chache Wards in Migori and Kisii Counties respectively due on August 17, next month.
The commission could be thrown into a disarray should the High Court rule against the Electoral Commission’s composition.
According to Chebukati the commission relied on the internal and external legal experts to carry on with the work despite having four vacancies following the resignations of Roselyne Akombe, Margaret Mwachanya, Connie Maina and Paul Kurgat.
“We relied on Article 250 of the Constitution. The Commission as currently constituted has three members which the Constitution allows to proceed with presiding over the commission,” said Chebukati.
The Committee’s Vice Chair Alice Wahome (Kandara) and Olago Aluoch (Kisumu West) poked holes into Chebukati’s interpretation of article 250 (I) which states that each commission shall consist of at least three, but not more than nine, members.
The duo argued that the law is general for all the commissions on its composition but IEBC Act is the enabling law that governs the Electoral agency governance and operations which cannot be interpreted generally.
“The law you are referring to is being enabled by the IEBC Act. You cannot interpret and act on the basis of legal opinion in total disregard of the IEBC Act which sets the quorum of the commission at four,” said Aluoch.
Chebukati suspended Chiloba for the second time last month despite a court order that allowed him to resume work.
The chairman said he sent he sent the embattled Commission Secretary home again pending the completion of the comprehensive audit of all major procurement relating to the August 8, 2017 general election as well as the fresh Presidential elections held on October 26, 2017.
Commissioner Boya Molu told the William Cheptumo led committee that the court order gave the commission a leeway that enabled them to suspend Chiloba using the Commission’s Human Resource Manuals.
“We have not been served the court order. But when we studied the ruling, we consulted with our legal team and suspended Chiloba using the Human Resource Manuals. The suspension is purely based on the internal audit investigations preliminary report,” said Molu.
Molu argued that their preliminary findings of the internal audit revealed financial and procurement flaws that if Chiloba was left in the office, might interfere with the investigations.
“We don’t have anything against the CEO. The suspension was done to give investigators free hand to their work. We have not condemned anyone or made a conclusion that he is guilty. He might come back based on the final report of the audit,” said Molu.
“The CEO will appear before the plenary to answer to the questions on the final audit report and we will determine whether he has a case to answer or not,” Molu added.
The commissioners said they will remain put and will not bow to any pressure to exit the office.
Responding to a question from a member of the committee, Dagoretti South MP John Kiarie that they should resign to save the agony of recruiting new commissioners towards the general elections, Commissioner Guliye said the resignation of their colleagues was voluntary and they should not be hounded out of office on the basis of the resignation.
“We feel like the resignation of our colleagues is being used to push us out of office. We have not committed any crime, we are in office legally and doing our constitutional mandate. The question we should be asking is how the vacancies will be filled and not why we should resign,” Prof Guliye said.