Why taxpayers may lose millions in send-off package for Cherera team

Hassan and the other commissioners had a clause in their contracts that stated that they would be paid for the remainder of their terms if they left office earlier.

The commissioners therefore each went home with an average of Sh35 million meant to cushion them from loss of future earnings, including salaries and gratuity payments. The cost represented less than one year's worth of payments, making it a meagre figure compared to that of the Cherera team, who were only in office for over one year.

The Standard, however, cannot confirm if the Cherera team had such a clause in their contracts and if they will be paid for the remainder of their term.

The dispute over the August 2022 presidential election results fractured the commission after four commissioners - Cherera, Wanderi, Nyang'aya and Masit - rejected the final tally while the other three - IEBC Chairperson Wafula Chebukati and Commissioners Boya Molu and Prof Abdi Guliye - supported the outcome.

Subsequent events would see the four commissioners face petitions calling for their ejection from office, with the National Assembly's Justice and Legal Affairs Committee (JLAC) recommending their suspension and formation of a tribunal to investigate their conduct in the General Election.

However, it is only Masit who would face the tribunal that resumes on January 23 after Cherera, Wanderi and Nyaga'ya tendered their resignation to President William Ruto.

As of January 17, the commission's operations will be in limbo as six out of the seven commissioners, including the chairman, are expected to be out of office, leaving only Masit who is currently suspended and facing petitions seeking her removal from office.

According to the IEBC Act of 2011, whenever there is a vacancy in the office of the chairperson, the vice-chairperson shall act and exercise the powers and responsibilities of the chairperson.

When both the chairperson and vice chairperson are absent, "the Commission shall elect from amongst themselves a member to act as the chairperson and exercise the powers and responsibilities of the chairperson."

However, lawyer Dunstan Omari argues that the situation at IEBC might see Chebukati continue holding office after his retirement through an advisory from the Supreme Court. Mr Omari contends that the Constitution does not envisage a vacuum of power.

"If there is a crisis, the law of perpetuity of government will prevail. They (the commissioners) will be recalled and proceed to discharge their mandate. There can never be a constitutional crisis," he said.

Constitutional lawyer Bobby Mkangi says despite the impending structural crisis in the electoral body, much of its operations will not be affected. Mr Mkangi argues that the law put in place the secretariat to oversee the day-to-day activities undertaken by the commission such as voter registration, administrative issues and the work that had already been commissioned by the commission when it was still intact.

"It's only the aspect of policy making and issues where only the commissioners can make a decision, those are the ones that will be compromised for the time being," he says.

On October 12, 2022, President Ruto declared vacancies at the electoral agency as terms of the chairman and commissioners Guliye and Molu come to an end. Despite receiving a resignation letter from the three commissioners, President Ruto has yet to declare the offices vacant to jumpstart the process of reconstituting the now "shell of a commission."

The president has also not established a selection panel to recruit the IEBC chairperson and commissioners as is required by the IEBC Act.

"At least six months before the lapse of the term of the chairperson or member of the commission or within fourteen days of the declaration of a vacancy in the office of the chairperson or member of the Commission under the Constitution or this Act," reads the IEBC Act.

This comes after the National Assembly approved amendments to the law that would alter the initial composition of the panel that will select, interview and pick the next IEBC commissioners.