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Rogue commissioners who put IEBC in turmoil want to finish it

By Makau Mutua | September 2nd 2018

Robert Frost, the vaunted American poet, once observed that “home is the place where, when you have to go there, they have to take you in.” For most Kenyans with rural ancestral roots, the “home” referenced here would be the village. That’s where most Kenyans go to expire when they are ready to exit this world.

They don’t go to die in the “office” where they worked. A public office isn’t a personal residence from which one can abscond and return willy nilly. To wit, an office isn’t the “village” which can’t reject you. But rogue IEBC commissioners Connie Maina and Margaret Mwachanya – who resigned and then “unresigned” – conflate the electoral body with their personal residences, or the ancestral village.

It boggles the noggin why any member of a constitutional body can publicly announce – in broad daylight and before cameras – that she has resigned and then sneak back into the office four months later. I know there’s a court ruling the resignations of Ms Maina and Ms Mwachanya are null and void because they were unprocedural. 

Call me a legal pagan but what’s unprocedural can still be substantively legal and effective. The 2010 Constitution admonished judges not to let legal niceties and formalities trump substantive justice and common reason. Where, as here, the rogue commissioners have renounced, repudiated, and forsaken their oath of office, their contractual obligations are irretrievably broken. Let’s elaborate.

The judge in that case – learned though he may be – erred terribly. In matters of the social contract – as the IEBC is contracted to the public – the judge cannot be a strict constructionist. 

By this I mean the judge can’t simply look at the black letter law without interpreting it in the larger social and legal context. It’s akin to a court commanding that a violent and malignant married couple with irreconcilable differences continue to live together in cruel matrimony. The divorce has already taken place and all the court is required to do is recognise the fact and give it the effect of the law. Holding otherwise is sentencing the mendacious spouses in bondage to each other.

The marriage between the IEBC and Ms Maina and Ms Mwachanya is actually between them and the Kenyan public. The erstwhile commissioners voluntarily “divorced” Kenyans. As I recall, the Kenyan public was thrilled to be divorced by what they regarded as “cheating” spouses. 

Once you are divorced, you cannot unilaterally crawl or sneak back into the former matrimonial home under the cover of darkness. Nyet. You became a stranger the moment you packed up and “divorced” yourself. No spouse with a sense of public shame would ever – like a thief – crawl back into an expired marriage.  It’s like unringing a bell. A bell can’t be unrung once it rings. It’s like water down the drain.

Public payroll

This is why I think the two commissioners are public scoundrels. If, as I suspect, the two have been on the public payroll, then this is a worse public scandal than I thought. It means the public has been paying them – with their hefty benefits – while they “cat-walked” and gallivanted. Where on the earth do you get paid for deliberately absconding your office for four months?

They must take Kenyans and the state for bumbling idiots, or they are the very definition of impunity. It’s shocking they chose to return to office when the state has declared war on corruption and impunity. Where in the world is DPP Noordin Haji and the EACC? Isn’t this blatant abuse of office?

Where is Wafula Chebukati? Isn’t he in charge of the IEBC? How can he let the two commissioners – who are acting like con-women – access the IEBC offices? One of them – named Connie (no pun intended) – was even the vice chair. How irresponsible does an IEBC commissioner have to be to lose office? These two were among a cabal that made the IEBC so toxic that Dr Roselyn Akombe had to resign. 

They put the IEBC in ICU. Have they now come back to “finish” it and send it to the morgue? What has changed between the time they resigned and now?  Have they been on the road to Damascus? Let me return to a legal matter. The concept of “unresigning” doesn’t exist in law. It’s a legal nullity. I read a nefarious plot in the “return” of the two to the IEBC. It’s a fact that the IEBC was deeply factionalised. That’s why Dr Akombe left. Most commissioners were beholden to political godfathers. My educated guess is that the two have returned at the behest of a 2022 presidential candidate. That’s why this IEBC must be dismantled and a new credible electoral body created.

-The writer is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC.  @makaumutua.


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