Cherera Four: Masit sank on her own sword

The last of “Cherera four” electoral commissioners fell of her own failure to face head-on damning evidence adduced against her by credible witnesses, the tribunal report recommending her sack said.

Irene Cherop Masit avoided confronting the elephant in the room- testimony that she was a willing participant in a scheme to overturn the will of Kenyan voters- and instead chose to question the credibility of witnesses, partiality of tribunal members, the jurisdiction of the tribunal among other points of law.

She neither filed any affidavit or document nor called any witnesses to rebut the grave allegations levelled against her. In the end, with the evidence against her uncontroverted, the inquiry ended up being a walk in the park for the tribunal and its Lead Counsel Peter Murage.

On Monday, the tribunal chaired by Court of Appeal Judge Justice Aggrey Muchelule recommended that Masit be removed from her position. Former Law Society of Kenya Vice President Carolyne Kamende deputised Justice Muchelule while Linda Kiome, Mathew Nyaramba and Col (Rtd) Saeed Khamis Saeed served as members.

“All the above-mentioned evidence remained uncontroverted. It was subjected to cross-examination by the Learned Counsel for Commissioner Irene Masit. The evidence according to us remained unshaken and we accept it,” the tribunal said of her failure to rebut the core of the evidence against her.

The cited evidence is related to allegations of serious violations of the constitution and the law.

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On this ground, Murage submitted that Masit agreed to subvert the will of the people in agreeing to the incentives of the National Security Advisory Committee (NSAC) who visited the Bomas National Tallying Centre on the eve of the announcement.

The tribunal heard that Masit agreed to a proposal to alter the results of the presidential election in favour of one candidate or in the alternative to force a run-off. The NSAC delegation and another one of “elders” asked IEBC commissioners not to operate in a vacuum and instead, see the bigger picture of the stability of the nation.

Further, they stated that it was important that the results be moderated in favour of “Baba” and that any contrary determination of the results would “plunge the country into chaos”.

“Consequently, we make a finding that the Commission was visited by the two delegations and their mission was as stated by the witnesses. We make a further finding that the Commissioner agreed with the request by the delegation that they needed to interfere with the result by either declaring “Baba” as the winner or in the alternative, they are moderated to allow for a re-run,” the tribunal said.

The tribunal found that Masit’s acquiescence to the demands to moderate results or force a run-off were proven to the required standard and the Commissioner was, therefore, in breach of various constitutional provisions. “These actions were a clear, blatant and willful attempt at usurping the sovereign will of the people,” the tribunal added.

On allegations of biased conduct in the presidential election, the tribunal observed that by agreeing to the requests, Masit subjected herself to the direction and control of the members of NSAC and the three other visitors. The tribunal affirmed that the Commissioner absconded duty by moving out of the gazetted national tallying centre at a time when the Presidential Returning Officer was about to declare the results.

Further, she proceeded together with others to make a parallel announcement at Serena Hotel declaring official results as “opaque”.  In doing so, the tribunal said she violated Section 6 of the Election Offences Act, which forbids electoral commission duty bearers from colluding with any political party or candidate for purposes of giving an undue advantage on partisan, ethnic, religious, gender or any other unlawful considerations.

“It is our finding that by rejecting the results that the Commissioner was part of, she called into question the credibility of the entire election without placing before the Country any information or document showing that the elections were either compromised or that the result would have in any way differed from that declared by the Chairperson of IEBC,” the tribunal said.

Further, the Commission accepted wholly the uncontroverted evidence placed before it that showed that Masit was residing at the Yaya Towers between August 15 and 19th and that a number of senior officials from the Azimio La Umoja-One Kenya Coalition had access to and frequented the hotel during that time.

“One of them was Raphael Tuju who as captured earlier on, was part of a delegation that had gone to meet members of the IEBC in an effort to persuade them to moderate results in favour of Raila Odinga or in the alternative force a run-off. This is further evidence of partiality and undue influence on the part of the Commissioner,” the tribunal found.

The tribunal observed that in the circumstances, the Commissioner breached the trust bestowed upon her by the people of Kenya and demeaned the office she was holding. The tribunal further indicted her on account of what was reported of her during the Commission-NSAC encounter at Bomas.

“A debate ensued when Commissioners Francis Wanderi and Irene Masit suggested that in light of the NSAC delegation’s communication, the results be changed to force a re-run which in their view would be a ‘win-win’ situation,” the tribunal heard.

When Prof Abdi Guliye, a Commissioner enquired how that would be done, Commissioner Juliana Cherera stated that the margin was not too big and could be manipulated by moving the 233,211 votes from William Ruto to the rejected ballots category.

The tribunal said this evidence demonstrated that Masit did not respect, uphold and defend the constitution and countenanced an attempt to establish a government outside the law. The tribunal further hammered her on the second ground of gross misconduct, all relating to the same happenings of Bomas.

On this, the tribunal particularly took issue with her disowning of the result that she had participated in tallying and verifying. They said she intended to undermine and erode public trust in the commission and the result, and therefore gross misconduct.

“The actions by Commissioner Irene Masit clearly show that she was amenable to improper influence and that she could not be trusted to be an impartial and neutral arbiter. Once again, she was guilty of gross misconduct,” the tribunal ruled.

The only saving grace for Masit was the third ground of incompetence which the tribunal rejected, albeit too late.  According to the tribunal, evidence placed before it demonstrated that Masit had demonstrated competence all through the electoral cycle, except for the events of August 15. They noted avowals on her competence by IEBC chair Wafula Chebukati.

The tribunal said a single incident of dereliction of duty cannot amount to incompetence.

“In the circumstances, we decline to find and hold that the actions of the Commissioner amounted to her lack of ability, knowledge, legal qualification, or fitness to discharge the required duty or professional obligation’ as a Commissioner,” the tribunal said.