Kenya 2022: Election further deepens the divide among IEBC commissioners

Division at the Independent Electoral and Boundaries Commission (IEBC) deepened after its chairman, Wafula Chebukati, claimed that the four commissioners who contested the presidential results had unsuccessfully pushed for a re-run.

In a hard-hitting statement, Chebukati said the four had wanted him to declare that none of the four presidential candidates had obtained the required 50% plus one threshold to be declared winner, as per the constitution.

Such a move, the chairman said, would have been against the law and the commissioners’ oath of office.

The allegations are expected to raise more questions than answers over the credibility of the just concluded general election. The Azimio La Umoja flagbearer Raila Odinga has already dismissed the results that declared his main challenger William Ruto the winner as “null and void”.

Raila has vowed to seek justice in court, accusing Chebukati of acting “with gross impunity and in total disregard of the constitution”.

Opaque results 

When announcing the figures on 15 August, Chebukati declared Ruto the winner with 50.4% (7,176,141) of the votes against Raila’s 48.8% (6,942,930). This is the narrowest margin a presidential candidate has won an election with since the introduction of multiparty elections in 1992.

However, the four commissioners Juliana Cherera (vice-chairperson), Francis Wanderi, Irene Masit and Justus Nyang’aya disowned the results, claiming that they were ‘opaque’ and had not been agreed on by all commissioners.

“We cannot take ownership of the result that is going to be announced because of the opaque nature of this last phase of the general election,” said Cherera after the four commissioners walked out the Bomas of Kenya national tallying centre just before Chebukati declared Ruto the winner.

Election re-run

However, in a statement, Chebukati said the commissioners were being economical with the truth.

“During a briefing meeting held on 15 August 2022 at around 3pm before the final declaration of the presidential election results, the four commissioners i.e. Juliana Cherera, Francis Wanderi, Justus Nyang’aya and Irene Masit demanded that the chairperson moderate[…] the results for the purpose of forcing an election re-run contrary to their oath of office.

“This is tantamount to subverting the Constitution and the sovereign will of the people of Kenya. The chairperson refused to yield to this unconstitutional and illegal demand and proceeded to declare the results of the presidential election as received from the polling stations, and contained in Form 34A, in accordance with the law,” he said.

Chebukati dismissed the four commissioners’ argument that they should be involved in the final declaration of the results saying the responsibility falls squarely on the chairman of the commission.

It will be very difficult for the commissioners to work as a team after the two camps accused each other of unprofessional conduct

“The role of national returning officer for presidential election is not a shared responsibility and not subject to plenary decisions of the commission. All returning officers including the national returning officer for presidential election took an individual oath of secrecy before embarking on their duties.

“In addition, the chairperson and commissioners took oath of office at the time of appointment. It is an oath of office that the chairperson faithfully executed, when he declared the results for the presidential election on Monday 15 August 2022,” he said.

Commissioners Abdi Yakub Guliye and Boya Molu are supporting the final results declared by Chebukati.

Legal battle

The arguments made by the two rival camps at the commission are expected to be at the centre of the legal battle between Ruto and Raila at the Supreme Court next week.

The Kenya Kwanza Alliance seems to side with the Chebukati-Guliye-Molu group, while the Azimio coalition supports the Cherera-Wanderi-Nyang’aya-Masit team.

Although Ruto has described Chebukati as a hero for resisting intimidation and manipulation in executing  his mandate, Raila has termed the four commissioners as patriotic Kenyans “who stood up to bullying and illegal conduct of Mr. Chebukati”.

According to John Charo, a political analyst in Nairobi, the division threatens the smooth operations of the commission given the fact that the general election is yet to be concluded following the suspension of the gubernatorial  and parliamentary polls in various parts of the country following a mix up of names and images of candidates on the printed ballot papers.

“It will be very difficult for the commissioners to work as a team after the two camps accused each other of unprofessional conduct. This will make Kenyans even more sceptical about elections and also increase voter apathy,” says Charo.

Signs that all was not well at the commission became apparent last month when the first ballot papers arrived in the country. At the time, some commissioners accused Chebukati of keeping them in the dark about the arrival of the first batch and only involving them at the last minute.

High-handedness

However, before the fallout, Chebukati had all along insisted that the commission was united and working as a team to deliver a free and fair election.

This is not the first time that IEBC commissioners have fallen out. In 2018, three commissioners (then vice chair Consolata Nkatha Maina, Paul Kurgat, and Margaret Mwachanya) resigned after differing with Chebukati and accusing him of incompetence and high-handedness.

3 senior members of Kenya's Electoral Commission have resigned.
In the statement below Vice Chairperson Connie Nkatha Maina, and Commissioners Paul Kurgat & Margaret Mwachanya say that recent events have shaken their 'already feeble confidence' in the commission chair pic.twitter.com/6NOKa569iS

— Samira Sawlani (@samirasawlani) April 16, 2018

The three commissioners said under Chebukati’s leadership, “the commission boardroom has become a venue for peddling misinformation, grounds for brewing mistrust, and a space for scrambling for and chasing individual glory and credit”.

The IEBC chairman vehemently denied the allegation, instead accusing the trio of lacking principles. “Their action demonstrates lack of capacity to lead in difficult times and accommodate divergent views,” he said at the time.

Political interests

Commissioner Roselyn Akombe, who was the first to tender her resignation in late 2017, had lamented about the toxic work environment saying “the commission had been turned into a competition of political interests making it difficult to defend under the principle of collective responsibility”.

The fallout prompted a chorus for his resignation, but Chebukati remained defiant, arguing that he was not a quitter and would see out his contract.

This year’s election is the last one Chebukati will oversee before the expiry of his six-year term that comes to an end on 18 January 2023 upon which his vice-chair, Cherera, will succeed him.