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IEBC bosses to answer to claims as House team defends its legitimacy

By Wilfred Ayaga | August 2nd 2016
Electoral commissioners led by Chairman Issack Hassan (second left), his deputy Lilian Mahiri-Zaja (second right), CEO Ezra Chiloba (left) and Commissioner Thomas Letangule before the Parliamentary Joint Select Committee on IEBC at County Hall, Nairobi, yesterday. (PHOTO: BONIFACE OKENDO/STANDARD)

Election officials will personally answer to allegations against them after MPs rejected their bid to stall a parliamentary probe into their conduct. But the electoral commissioners’ preliminary challenge to the legitimacy of the parliamentary select committee gave a glimpse into a looming court battle in the event it recommends their ouster.

The stand by the officials of the Independent Electoral and Boundaries Commission (IEBC) was compelling enough to force a four-hour adjournment after which the committee gave its verdict.

“Parliament, in the execution of its legislative and oversight role, has the jurisdiction to inquire into any matter... the Constitution empowers each House of Parliament to establish committees,” the House team said in its ruling read in turns by its co-chairs, senators Kiraitu Murungi (Meru) and James Orengo (Siaya).

The commissioners and members of the secretariat will now each have to respond to specific allegations of incompetence made by various stakeholders, emanating from their handling of the March 2013 General Election.

The chair of the electoral body, Isaack Hassan, is facing allegations of illegally procuring legal services for the commission, illegally awarding a tender for the procurement of Electronic Voter Identification Devices (EVIDs) and accepting bribes to influence tender awards.

Commissioners Thomas Letangule and Mohammed Alawi face claims of illegally awarding a tender for the supply of Biometric Voter Registers (BVRs) to the tune of Sh6.2 billion.

The CEO of IEBC, Ezra Chiloba, has been mentioned in connection with the payment of Sh258 million to Face Technologies for the supply of EVIDs. He has, however, been cleared in the latest report of the Auditor General on grounds that the payment was approved by the Treasury.

Fishing for charges

Other officers mentioned in procurement malpractices are Betty Sungura Nyabuto, Immaculate Kasait and Bernard Nyachieo. They were among members of the tender committee implicated in the alleged corrupt procurement of biometric voter registration kits in the last General Election, and were listed in summons issued by the House team.

Others named in a report of the Auditor General over procurement malpractices were Nancy Kariuki, Bilha Kiptugen, Dinah Liech, Peter Ibrae and Joel Mabonga.

Hassan, Letangule, Lilian Bokeye Mahiri-Zaja, Albert Camus Onyango Bwire, Kule Galma Godana, Yusuf Nzibo, Abdullahi Sharawe, J Muthoni Wangai, and Mohamed Alawi Hussun were collectively named in the report for allegedly abdicating their oversight roles in the procurement process.

The report was alluded to by various stakeholders during their presentations. Among them were the Opposition Coalition for Reforms and Democracy (CORD), International Commission of Jurists (ICJ), the Council of Governors and petitioner Barasa Nyukuri.

In seeking to stop the inquiry, the commission — through its chair — argued that it could not be sacked except through a petition as envisaged under Article 251 of the Constitution. It accused the committee of fishing for charges from stakeholders in a manner that was not contemplated in the Constitution.

“The committee has become a petitioner by collecting allegations in a letter and asking us to respond. It is a violation of the principles of fair hearing. A petition is the only mechanism available to the public through which commissioners of the IEBC can be removed,” said Hassan, who was accompanied by eight other commissioners and members of the secretariat.

During its proceedings, the select committee also asked to see documents in the possession of the Ethics and Anti-Corruption Commission (EACC) and the Director of Public Prosecutions (DPP) on the ‘Chickengate’ scandal.

Religious leaders, in their presentation, called for the commissioners’ exit on the grounds of loss of public confidence.

“Having reviewed the committee’s terms of reference, it is apparent that one of the outcomes of the committee is the removal of IEBC and proposal for mechanisms for their removal. It goes against Article 251 of the Constitution which set out the procedure for such removal,” IEBC said in its challenge.

The commission’s stand was compelling enough to force a four-hour adjournment as the committee considered its options, including “downing our tools”, according to Orengo.

Kiraitu said the issues raised went to “the root of the committee’s mandate” while Moses Kuria said the challenge “raises constitutional questions of fundamental importance”.

At the end of the adjournment, the team sought to explain its mandate.

“The proceedings of this committee are not intended to result in the removal of any or all of the commissioners as contemplated in Article 251. The Motion passed by both Houses requires the committee to inquire into allegations, and the committee was mandated generally to receive views generally on any such allegations,” the committee said, to which the commission agreed.

“We feel that some of the allegations are specific to the commissioners. We want to ask that they be allowed to respond within the next 24 hours,” said Hassan.

Yesterday’s proceedings, however, raised the possibility of a legal challenge, which explains why the committee decided to arm itself with a considered ruling, complete with expert input.

The issue of a court challenge first emerged when the commission appeared before a parallel National Assembly committee chaired by Samuel Chepkonga (Ainabkoi) and Njoroge Baiya (Githunguri). The commission said it was being subjected to “double jeopardy”.

Kiraitu yesterday told the commissioners to put the interests of the country before their own.

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