A week after his retirement as the chairman of the electoral commission, Wafula Chebukati took the witness stand in a tribunal investigating the conduct of a former colleague.
Although not on the dock, Chebukati would defend his tenure at the Independent Electoral and Boundaries Commission (IEBC), saying he had created the most suitable environment for his fellow commissioners, including the suspended Irene Masit facing the Aggrey Muchelule-led tribunal, to thrive.
“I ran an open-door policy as chair and any of the commissioners who had an issue, including commissioner Masit, always walked to my office,” Chebukati would on Tuesday describe his working relationship with the immediate former commissioners, who also include Abdi Guliye, Boya Molu, Juliana Cherera, Francis Wanderi and Justus Nyang’aya.
His self-assessment mirrored a statement he tweeted a day after his retirement, in which he would say he had served the country to the best of his ability in undertaking what he described as “a challenging assignment.”
Naturally, there are those who would disagree with Chebukati’s assessment of his work as the IEBC chair, grading his tenure as dismal at best. Such include opposition leader Raila Odinga, who, a day earlier, had accused him of allegedly “cooking up” results.
Raila cited a dossier he and his Azimio party say is a whistle-blower’s account of the alleged rigging of the election. The Azimio leader views Chebukati as a criminal, a position he has held in the five years he has wanted the former IEBC boss ousted from the commission.
Had the opposition script played out, Chebukati would not be sitting before Muchelule’s tribunal last week, indeed not as the immediate former IEBC chairperson. He would not have overseen the repeat election of 2017, much less last August’s.
Since the botched presidential election of 2017, the Raila-led opposition pushed for the removal of the IEBC boss alongside Guliye and Molu, who he squarely blamed for bungling the 2017 presidential election.
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The opposition would stage demonstrations outside the IEBC offices. They would use every chance they got at a public forum to criticise Chebukati and his colleagues, attacking their personal character.
These were the formidable odds that Chebukati surmounted to see out his six-year tenure, which have ordinarily been more successful against previous commissioners.
Against most predictions, Chebukati oversaw two General Elections and three presidential contests. By many accounts, Chebukati was never meant to sit at the IEBC and only a twist of chance saw him emerge as the successor to former IEBC chairperson Issack Hassan.
In November 2016, nine months before the election, the selection panel recruiting IEBC commissioners shortlisted five candidates who would be interviewed for the chairperson job - Margaret Shava, Mutaha Kangu, Roseline Odede, David Mereka and David Malakwen.
Chebukati, who was not among the 13 who initially applied for the position, would apply when the panel revoked the shortlist and readvertised the position. After interviews by the panel, he would be nominated alongside lawyer Tukero ole Kina in the final shortlist presented to former President Uhuru Kenyatta.
Many did not fancy Chebukati’s chances since he had reportedly ranked much lower than ole Kina during the interviews and, chiefly, because he hailed from the same county and ethnic community as the then IEBC CEO Ezra Chiloba, with whom Chebukati would later be estranged.
The expectation was that Uhuru would choose to establish an ethnic balance and pick ole Kina. The former IEBC boss would defy such predictions to become the second chairperson of the IEBC, reconstituted from the defunct Electoral Commission of Kenya.
And he would later weather the pressure to resign for five more years, courtesy of the firmness that has recently been attributed to him, earning him President William Ruto’s praise as a “national hero” for allegedly resisting vote rigging attempts.
“He has shown that elections in this country require stamina, resolve and independence at a leadership level,” Election Observations Group national coordinator Mulle Musau said of Chebukati.
It is this strong character that has invited accusations that the former IEBC boss was a dictator. Raila made such allegations against Chebukati, claiming he side-lined four of his former colleagues in the management of last year’s elections.
Azimio spokesperson Makau Mutua made similar observations in an interview with The Sunday Standard. “Chebukati seems to arrogate lots of powers to himself that the Constitution does not grant. He is obviously a man with a poor grasp of the law and the Constitution and if not so, he is a man who has a total disregard for the law and is full of impunity,” Prof Mutua said.
In affidavits supporting the annulment of President William Ruto’s win, the four, former vice chairperson Cherera, Masit, Nyang’aya and Wanderi, famous as the ‘Cherera four’, testified that Chebukati had, indeed, side-lined them in the commission.
They would claim that the former chair was fond of making unilateral information and did not involve them in making decisions that ought to have been collective.
“By his actions and conduct, therefore, the chairperson mistakenly turned the commission into a one-person show and in the process, effectively subverted the Constitution and the elections laws,” Cherera said of Chebukati’s decision to assign commissioners roles that did not involve verifying and tallying results.
At the Supreme Court, judges were shocked by the description of Chebukati by lawyers of the four commissioners and would eventually fault the relegation of commissioners to the level of essentially being the chairperson’s subordinates. When he appeared before the tribunal on Monday, Guliye said the division of labour among the commissioners had been in good faith given the enormous task of overseeing the verification and tallying processes.
“I am here having worked with the chairman and I’m best blessed to judge the him more than anyone else and I do believe the chair had been inclusive and consultative in his decision-making process,” Guliye said.
On Tuesday, Chebukati would also tear into the legacy he believes Masit and three other former commissioners –Cherera, Wanderi and Nyang’aya – leave with their exit from the IEBC. His legacy, Chebukati has said numerous times before, was cemented with the Supreme Court’s declaration that last August’s presidential election had been credible.
But the same court that vindicated Chebukati would find fault in his management of the commission, saying there was a serious malaise in its management. During the hearing of petitions challenging Ruto’s victory, the Supreme Court, and the nation, would have a glimpse at the commission’s dysfunctionality.
Two factions of the commission, led separately by Chebukati and Cherera, would accuse each other of allegedly trying to subvert the will of the people by allegedly altering the presidential election result. “The court retains a constitutional obligation to point out the institutional dysfunctionality undermining the optimal functioning of IEBC. It is clear to us that there are legal, policy and institutional reforms that are urgently required to address the glaring shortcomings within IEBC,” the Chief Justice Martha Koome-led court would state in its judgment.
But this factionalism was mere déjà vu of the 2017 split within the commission, exposing an apparent shortcoming in Chebukati’s leadership abilities. The Cherera-four were not the first colleagues to accuse Chebukati of highhandedness.
In April 2018, three commissioners, reportedly fed up with Chebukati’s leadership, resigned from the IEBC, accusing the former chairperson of making arbitrary decisions.
A hard-hitting joint statement read by former commissioner Margaret Mwachanya, on behalf of former vice-chairperson Consolata Nkatha and Paul Kurgat, depicted Chebukati as playing deaf to the suggestions of his colleagues, even as it exposed the glaring political interests that held significant sway within the commission.
“Under the current leadership we have had many instances where statements have been issued purporting to give a position of the Commission yet those statements are miss presentation of facts,” Mwachanya read out the statement.
At the time, their gripe with Chebukati arose from his confrontation with Chiloba, who the chairperson would indirectly accuse of bungling the election and would later suspend from the commission. “For far too long, and way too many times, the commission chair has failed to be the steady and stable hands that steer the ship in difficult times and gives direction when needed. Instead, under his leadership, the commission boardroom has become a venue for peddling money, misinformation, grounds for brewing mistrust and a space for scrambling for and chasing individual glory and credit,” Mwachanya went on.
Months earlier, former IEBC commissioner Roselyne Akombe had described Chebukati’s character as the opposite of what her three former colleagues had suggested. While she acknowledged the dysfunctionality of the commission in interviews after her resignation, Akombe would say Chebukati had “his heart in the right place.”
“I applaud him for being a very good leader for being somebody who’s very calm who’s there who has his heart in the right place. He wants to do well for the country,” Akombe said in an interview on NTV in October 2017.
“I hope the Kenyan people will give him a chance to lead that commission to something that is much better than what we have right now,” Akombe added, noting that partisan interests had taken root in the polls agency.
And far from the bully that Mwachanya and her colleagues’ statement had depicted of Chebukati, Akombe would say in an interview with the BBC that the former chairperson was under siege at the commission, frustrated by his colleagues who shot down his suggestions.
Coupled with that was a secretariat she insisted was at constant loggerheads with the commission, saying Chiloba had established a separate centre of power from the commission.
“The commission has become a party to the current crisis. The Commission is under siege. It has become increasingly difficult to continue attending plenary meetings where Commissioners come ready to vote along partisan lines and not to discuss the merit of issues before them,” Akombe had said in her resignation letter. Akombe in fact, identified Chebukati’s major weakness as failing to stamp authority, a far cry from the bully his colleagues would later suggest he was. “If he (Chebukati) was much more firmer, I think, probably, we could have gone much more far (sic.),” she would say of Chebukati’s ability to lead the commission. In the wake of Chebukati’s retirement last week, Akombe tweeted a cryptic message. “Everything has an end, eventually,” she wrote. The former IEBC commissioner declined to contribute to this article; hence, the Sunday Standard cannot verify whether Akombe still holds the same views about Chebukati as she did five years ago.
Efforts to reach out to former colleagues and others who interacted with Chebukati were futile, with some declining to comment and others not responding to requests for an interview.
Wilson Shollei, a Hassan-era IEBC deputy CEO, recently observed that Chebukati seemed somewhat of a control freak, citing his exchanges with Chiloba that saw the former IEBC CEO purged.
“There was a perception that they were in competition… and that Chebukati wanted to be in control of issues and wanted to avoid strong characters with whom he would be in confrontation. (IEBC CEO Marjan Hussein) Marjan fitted the bill,” Shollei said. He would, however, laud Chebukati for his “courage and principles”, qualities he identified as necessary for an IEBC chairperson.
“The biggest shortcoming is that he did not bring his commission together. They never gelled,” Shollei added, admitting the possibility that external forces could have had a hand in the commission’s splits. But Chebukati was not famous for being the firm chairperson commentators now consider him to be. On the same day that Akombe issued the interviews, October 18, 2017, Chebukati shocked the nation with an admission that his commission could not guarantee a credible repeat election, which was due in eight days.
“It is already painful for me to be on record as the chairman of the IEBC that presided over an election that was nullified by the Supreme Court,” Chebukati told a press briefing. “I have made these points on numerous occasions to my colleagues at the commission. I have made several attempts to make critical changes but all my motions have been defeated by a majority of the commissioners. Under such conditions, it is difficult to guarantee free, fair and credible elections.” Chebukati would go on to call for the resignation of secretariat staff who had been adversely mentioned as having compromised the August 9 election, but no one needed hints to know his target was Chiloba.
A leaked memo from Chebukati to Chiloba in early September 2017, in which the former IEBC chairperson demanded answers for the election’s mismanagement, set off confrontations that would end up in court and in Parliament, unearthing damning allegations on both sides.
Going into the 2017 polls, confidence in the electoral commission was generally low, given Kenya’s history of electoral mismanagement.
It was not enough that the coast-based lawyer picked to chair the country’s most scrutinised independent body had previously had an unsuccessful run in elective politics through Raila’s Orange Democratic Movement. The opposition doubted the commission’s ability to conduct a credible poll.
But they had a different target in sight, Chiloba, who had been part of Hassan’s commission and who shepherded the IEBC’s transition. And politicians from the defunct National Super Alliance (Nasa) would publicly castigate Chiloba as spearheading an alleged rigging of the election.
Chebukati would miss out on a list of IEBC officials that Raila and his Nasa coalition wanted to be kicked out of the IEBC, which included Guliye, Molu, Chiloba and Marjan, among other officials. This was, perhaps, courtesy of Chebukati’s memo that admitted illegalities in the election’s conduct, as the Supreme Court had found, and the IEBC’s suggestion that the illegalities – such as unauthorised logins by Chebukati’s account to the result transmission servers – had happened without his knowledge.
The crosshairs would be focused on Chebukati mostly after the repeat presidential election. Still, Chiloba got more of the heat directed at the commission by the opposition.
Through the memo, Chebukati essentially tried to absolve himself of wrongdoing, but politicians would fault him for the attempt. Amid the exchanges between Chebukati and Chiloba, Ruto, then the deputy president, would tell Chebukati that the buck stopped with him.
More politicians would criticise Chebukati for escaping the responsibility of the election’s mishandling and using Chiloba, who he would later suspend, twice, and eventually sack, as a scapegoat. Opposition politicians insisted that both had to exit the commission as they had been proven incapable to conduct credible polls. That would be Raila’s basis for boycotting the repeat election.
Later, Chebukati and Chiloba would be embroiled in a legal battle over the latter’s suspension from the IEBC. That was months after the former chairperson excluded the CEO from a team that had managed the repeat election, which had been headed by Marjan, who was the then deputy CEO.
Chiloba’s case against Chebukati exposed the tender wars over firms that supplied electoral materials to the IEBC, which tore the commission down the middle. It was understood that the commission had suspended Chiloba over a procurement audit at the IEBC, the result of which Chiloba would say had not implicated him in any criminality.
Uglier exchanges, with more damning allegations, would be witnessed in Parliament when the National Assembly’s Public Accounts Committee took up the matter following a special audit by former Auditor General Edward Ouko. While Chebukati alleged that Chiloba singlehandedly sourced election materials, the former IEBC CEO would testify of Chebukati’s alleged abuse of office and conflict of interest.
The former CEO would say Chebukati had fronted a ballot printing firm amid opposition objections to Dubai-based Al Ghurair supplying ballot papers for the repeat election. Chiloba would also accuse the former chairperson of engaging law firms that represented the IEBC in post-election petitions. He painted the image of a chairperson keen on advancing personal interests, citing the award of contracts to Chebukati’s former law firm Cootow & Associates. Chiloba would clarify that the law firm had been prequalified before Chebukati joined IEBC, but lamented that Chebukati had not disclosed what he viewed to be a conflict of interest.
Over the years, there have been concerns over the stonewalling habits of Chebukati’s commission. The former IEBC chairperson has in the past exhibited contradictions in his engagements with stakeholders such as political players, election observers and the media. When he opened up to the public, he held nothing back.