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Why IEBC commissioners had to go

By David Ohito | August 4th 2016
IEBC Chair Issack Hassan

Dozens of day and night meetings over many months are understood to have helped broker a deal for the exit of electoral commissioners.

The Standard has learnt of several meetings and advisories dating back to January and which included perusal of part of the evidence in the 'Chickengate' scandal.

Reports suggested that the dossier included how some Independent Electoral and Boundaries Commission (IEBC) officials received kickbacks.

But even as the commissioners bowed to pressure while presenting themselves as patriots, questions were asked about deliberations behind closed doors that saw them change tack and volunteer to relinquish their offices at will.

It was not immediately clear if the camera hearings would shield culpable commissioners from facing criminal prosecution.

Highly placed sources within diplomatic circles, independent commissions, investigation bodies and sources within Jubilee and CORD said some of the hard-line commissioners who were ready to face a tribunal rather than quit were humbled after they were confronted with 'hard evidence'.

At the core of the drama was how 'Chickengate' evidence that was used to convict suspects in the UK was made available to Kenyan authorities showing how an official earned a cut less travel and accommodation expenses.

The Ethics and Anti-Corruption Commission cleared the chairman, Issack Hassan, of any wrongdoing in the investigations into the scandal but recommended the trial of former CEO James Oswago.

Public confidence

Memorandums presented to the Parliamentary select committee noted that IEBC had irretrievably lost the confidence of the public.

Questions about its independence and impartiality as well as lack of capacity to conduct free and fair elections complicated matters for the commission.

The Standard similarly learnt of how an advisory opinion on succession in independent commissions, and particularly IEBC, and tabled by the Commission on Administrative Justice and Office of the Ombudsman in January this year was ignored even after it advised for a negotiated exit package for the commissioners.

Ombudsman Otiende Amollo had advised that Kenya risked running into a crisis if the transition of current commissioners - whose term expires on November 8, 2017 - was not managed well. Yesterday, the advisory came to pass as they offered to quit.

Mr Hassan, who had taken the tough stand that he would not resign, finally caved in and recited popular quotes about the country being more important than an individual. He opted for the political settlement negotiated by the joint Parliamentary Select Committee.

Similarly, behind-the-scenes meetings between ruling Jubilee and Opposition CORD leaders piled pressure on the embattled commissioners to relinquish office after the Opposition staged bloody protests that claimed at least four lives and left dozens wounded and others disabled from gunshot wounds.

Pressure mounted on the commissioners when a combined team of a multi-sectoral forum, which brought together religious groups, trade unions and non-government organisations, informed the joint committee co-chaired by Meru Senator Kiraitu Murungi and his Siaya counterpart, James Orengo, that it was risky for Kenya to keep the commissioners in office.

Before the commissioners bowed to pressure, presentation after presentation signalled and offered exit plans, leaving no doubt that their days at the helm of the electoral body was numbered.

The Ombudsman, in a memorandum to the joint select committee, said: "We note that issues relating to legality, legitimacy and integrity have been raised against the commissioners of IEBC. While we have noted that the question of integrity of the commissioners has been the subject of actions by other relevant agencies, that of legitimacy has been the subject of various surveys that has found public confidence in IEBC to be very low."

If the findings of the surveys are true, they may affect the capability of IEBC to hold free, fair and credible elections in August 2017.

Negotiated exit

Given the role of IEBC in the democratic and governance system, it is important that it engenders the trust and confidence of the public, including the main stakeholders in the electoral process.

The CAJ and the Multi-sectoral Forum argued that while Article 251 of the Constitution on the removal of commissioners from office may not be applicable in the present case, a constitutional and legal way of dealing with the matter would be for the commissioners to voluntarily exit office in the interests of the country and for the greater public good.

Since this would not be on account of removal as per Article 251 of the Constitution, their full benefits would be secured as if they had served their full term.

The Multi-sectoral Forum had brought together more than 420 delegates drawn from 17 sectors: Kenya Conference of Catholic Bishops; National Council of Churches of Kenya; Supreme Council of Kenya Muslims; Evangelical Alliance of Kenya; Hindu Council of Kenya; National Muslim Leaders Forum; CSO Reference Group; Election Observation Group and Central Organisation of Trade Unions among others.

The forum noted that with the next elections scheduled to be held in August 2017 as stipulated in the Constitution, it was risky to have in office IEBC commissioners whose term ends on November 9.

The stumbling block about the commissioners' exit was made smoother when four of them wrote letters to President Uhuru Kenyatta offering to quit but demanding to be paid for the remainder of their term, which would end in November 2017.

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