Verdict leaves commissioners in untenable situation

It is likely that all the parties involved in the presidential election petition were blindsided by a most unexpected Supreme Court judgment.

Petitioners Raila Odinga and Kalonzo Musyoka may have tried to project confidence, but they would have made their way into the courtroom full of doubt that an essentially conservative institution would make such a ground-breaking ruling.

President Uhuru Kenyatta and Deputy President William Ruto probably did not even contemplate that the court would nullify their re-election, having been persuaded by their lawyers and scores of advisers that the petitioners did not provide an iron-clad case.

It was, thus, notable that when he addressed journalists on Friday afternoon, the President borrowed the words of his chief adversary.

SUPREME COURT

It was just as the Supreme Court started its hearings that Mr Odinga told a public rally that seven judges cannot override the will of a majority of voters he claims gave him the mandate only for it to be stolen. It was as if he was resigned to losing the court case, and was preparing his supporters for protests.

On Friday, it was President Kenyatta’s turn to proclaim that six judges (one was absent through illness) cannot overturn the will of the people he still insisted gave him a clear electoral victory. Like Mr Odinga in the 2013 petition, President Kenyatta went on to say that he disagrees with the Supreme Court ruling, but would respect and abide by it.

He said he was ready for a repeat poll, but otherwise devoted most of his address to the appeal for peace.

Mr Odinga will also be gearing up for a repeat election, but first, there is the big issue of who will manage it.

SEVERE INDICTMENT

The finding delivered by Chief Justice David Maraga amounted to a severe indictment of the Independent Electoral and Boundaries Commission (IEBC), which was found culpable not just for irregularities and errors, but also illegalities.

The full ruling is yet to be delivered, but the very precise wording leaves no doubt that the court considers electoral commissioners and staff to have perpetrated election offences.

Speaking from the Supreme Court steps immediately after the ruling, Mr Odinga, Mr Kalonzo and their lead lawyer James Orengo minced no words in stating that they would not accept a repeat election presided over by the present IEBC.

But speaking later at his own press conference, IEBC chairman Wafula Chebukati deflected queries over whether he would resign. Flanked by some of his commissioners, Mr Chebukati insisted that the Supreme Court, at least from the findings delivered pending the full ruling, did not accuse him of any improprieties.

His view was that the court order was for the IEBC, as presently constituted, to manage the repeat presidential election within 60 days.

CRIMINAL OFFENCES

If there was any fault on the part of the IEBC, Mr Chebukati opted to pass the buck downwards to the secretariat staff, who he pointedly noted were inherited from the old regime by the new commissioners. He added that he had already asked the Director of Public Prosecutions to investigate and prosecute any election staff who may have committed criminal offences.

The commission’s CEO, Mr Ezra Chiloba, was a notable absentee at the press conference.

There is no doubt, however, that the Supreme Court ruling leaves the electoral commissioners in an untenable situation.

As IEBC returning officer for the presidential election, Mr Chebukati can hardly deflect the finger of blame to his juniors.

But in hanging tough, the IEBC boss and fellow commissioners know that they cannot be swiftly removed from office simply because the National Super Alliance leadership says so.

TENURE

They enjoy security of tenure and can only be removed through a long process of formal accusations and hearings.

Even if the current commissioners are removed, the process of appointing replacements is yet another long process, which would also involve Parliament, where President Kenyatta’s Jubilee Party enjoys a solid majority.

The removal of the team led by Mr Chebukati’s predecessor, Mr Isaac Hassan, was fast-tracked because Jubilee supported the Opposition clamour for a change of guard.

Unless both sides unite to jointly push out Mr Chebukati in the same manner, he will remain in office during the critical period organising the next elections, and probably into overseeing the polls.

A duel over the IEBC is, thus, likely to take centre stage.

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