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Raila plots legal battle with Ruto over plan to remove IEBC Four

IEBC Commissioners address members of the press on August 15, 2022 at Serena Hotel in Nairobi. [Edward Kiplimo, Standard]

A legal battle pitting President William Ruto’s Kenya Kwanza Alliance and opposition leader Raila Odinga’s Azimio la Umoja-One Kenya coalition party over the removal of four Independent Electoral and Boundaries Commission (IEBC) commissioners is crystallising.

Azimio-allied MPs have vowed not to attend the Justice and Legal Affairs Committee hearings on petitions filed against Juliana Cherera, Justus Nyangaya, Francis Wanderi and Irene Masit a wide berth, citing a pre-determined outcome by their Kenya Kwanza counterparts as witnessed on Thursday.

Lawyers representing the four dissenting commissioners have also challenged the jurisdiction of the JLAC, claiming it is not mandated to hear the  four petitions seeking the removal of the commissioners on grounds of violation of the constitution, incompetence and gross misconduct. On Thursday, the lawyers stormed out of a petition hearing session after raising preliminary objections, stating that they would not be party to an unconstitutional and politically instigated process.

They also failed to appear for the sessions on Friday where allegations against their clients were being presented.

And now, both the legislators and the lawyers have maintained that they would steer clear of the hearings on Monday, thereby setting the stage for a clash with their Kenya Kwanza counterparts who have continued with the impeachment proceedings.

Committee chair George Murugara yesterday assured the Sunday Standard that should the commissioners and their lawyers fail to appear the committee next week, they would treat the petitions as undefended or uncontroverted.

Simple majority

“The committee only requires eight members to sign the report to Parliament. Membership is not determined by political divides. All members are equal. Only a simple majority is required,” said Murugara.

Azimio leader Raila Odinga has, however, put his foot soldiers on alert, threatening legal action against the committee should it proceed to recommend the formation of a tribunal for the removal of the four commissioners.

“If the committee goes ahead to recommend for the formation of a tribunal and removal of commissioners without our input as Azimio, we will instigate a judicial process. The country might also go back to agitation through mass action,” said nominated MP John Mbadi, who doubles as chair of the Azimio- affiliated ODM party.

Mbadi averred that without Azimio’s input, JLAC had become a partisan committee that went against the House standing orders which require that there must be participation from both sides of the political divide.

 “The hearings have become a Kenya Kwanza affair and we all know that the outcome is already pre-determined. The integrity of that committee is already compromised,” he stated.

 Murugara, however, dismissed the move by the Azimio legislators to boycott the proceedings, saying it was inconsequential.

Vengeance

The removal of four commissioners from the electoral agency has been at the centre of a tiff between President William Ruto and Raila.

Raila has accused the Executive of mutilating independent institutions in pursuit of vengeance on the four rebellious commissioners while Ruto’s lieutenants have alleged and maintained collusion between the commissioners and Azimio in a bid to overturn the August 2022 presidential results.

Their antagonism snowballed into an online spat on Friday, where both leaders traded barbs.

A day earlier Raila had accused President William Ruto of bordering on dictatorship and trying to take the country back to the dark days of the Kanu regime.

President Ruto, in response, said that under his administration, the rule of law will have a say, and not the wishes of big men.

The president termed Odinga as one of  the lords of impunity, who destroyed oversight institutions “using handshake fraud”.

“The lords of impunity, who destroyed oversight institutions using the handshake fraud, should allow parliament to hold rogue officials who put the nation in danger by subverting the democratic will of the people to be held to account. The new order is RULE of LAW not wishes of big men,” President Ruto tweeted.

This elicited a response from Odinga moments later; “There is due process and natural justice, things aren’t just done at the whims of the executive. The rule of law must prevail and not your jungle laws that you want to institute so as to subjugate Kenyans to a conveyor belt system of elections come 2027. We shall not relent.”

This after Raila had on Thursday termed the ongoing hearing to remove the four commissioners, who disputed Ruto’s win, as unconstitutional.

Lawyer and constitutional expert Lempa Soyinka termed the JLAC summons as unconstitutional, noting that the commissioners had the option of not appearing before the committee.

“The commissioners have an option of going to court and stopping the committee from proceeding with the hearings. By appearing, they will be legitimising an illegitimate process,” said Soyinka.

He argued that Parliament is a creation of the Constitution and so is the IEBC and thus, it should stop overstepping its mandate and applying the Constitution selectively.

“Under Article 251, the commissioners enjoy security of tenure. There is also a clear process of the removal of a commissioner, which the committee should follow,” added Soyinka.

Grounds for removal

According to article 251 of the Constitution, a commissioner may be removed from office only for a serious violation of the Constitution including a contravention of Chapter Six, gross misconduct,  physical or mental incapacity to perform the functions of office, incompetence, or bankruptcy.

A person desiring the removal of a member of a commission or of a holder of an independent office may present a petition to the National Assembly setting out the alleged facts constituting that ground.

The National Assembly shall consider the petition and, if it is satisfied that it warrants grounds for removal, shall send the petition to the President.

“Once in receipt of the petition, the President may suspend the member or office holder pending the outcome of the complaint and shall appoint a tribunal,”states the law.  

The tribunal shall consist of a person who holds or has held office as a judge of a superior court, who shall be the chairperson, at least two persons who are qualified to be appointed as High Court judges; and one other member who is qualified to assess the facts in respect of the particular ground for removal.

The tribunal shall investigate the matter expeditiously, report on the facts, and make a binding recommendation to the President, who shall act in accordance with the recommendation within thirty days.

A commissioner is entitled to continue to receive one-half of the remuneration and benefits of the office while suspended.