Kenya: Murder, corruption and chaos; who will replace the outgoing electoral boss Chebukati?

By Son Gatitu

Posted on Tuesday, 31 January 2023 15:48
People engage in a scuffle with the security officials before the announcement of the results of Kenya's presidential election, at the IEBC National Tallying Centre at the Bomas of Kenya, in Nairobi, Kenya
People engage in a scuffle with the security officials before the announcement of the results of Kenya's presidential election, at the IEBC National Tallying Centre at the Bomas of Kenya, in Nairobi, Kenya August 15, 2022. REUTERS/Thomas Mukoya

After a cancelled election in 2017, and the upheaval at the HQ of the electoral commission in 2022, will Kenya's next slate of election administrators be able to deliver on the promise of democracy? A series of unsolved murders and threats against the life of the outgoing chairperson of the commission suggest the road will be a long one.

The tenure of long-serving Kenyan electoral commission boss Wafula Chebukati has come to an end. As he left, he called on President William Ruto to form a commission of inquiry to probe into allegations of high level state manipulation of the 2022 presidential election. This has the president convinced of “horrible” plans that he claims would have ended Chebukati’s life.

“The gravity of these attempts to subvert the will of the people cannot be wished away or swept under the carpet because they may reemerge in the future election,” Chebukati said on 16 January.

Chebukati spoke a day before his retirement from the commission that he has led since 18 January 2017.

Nullified election

Chebukati became the first ever-electoral commission boss to oversee a presidential election that ended up with nullification in Kenya and Africa. “It is already painful for me to be on record as the chairman of the IEBC that presided over a presidential election that was nullified by the Supreme Court,” he said in October 2017.

Commissioner Roselyn Akombe resigned in the middle of an election in October 2017, citing partisanship in the commission. “Commissioners come ready to vote along partisan lines and not to discuss the merit of issues before them,” Akombe said.

She is one of our finest brains and it is very sad we could not provide an environment for such minds to find full expression of their work without fear of their lives

Akombe, one of the strongest pillars of Chebukati at IEBC then, left him exposed in the wake of a high-stake election that had been boycotted by long-time opposition leader Raila Odinga. “She is one of our finest brains and it is very sad we could not provide an environment for such minds to find full expression of their work without fear of their lives,” Chebukati said.

Akombe’s departure was a culmination of continued political interference in the commission that had Chebukati close to throwing in the towel. “I won’t allow anyone to destroy this country as long as I am the referee,” he said.

Boardroom chaos and grudges

By the time Kenya held the August 2017 election, Chebukati and six commissioners had been in office for less than seven months.

The nullification of the presidential election in September that year threw the IEBC boardroom, which previously seemed the most united in Kenya’s history, into disarray. Blame was traded, a section of the commission passing the buck to then chief executive officer Ezra Chiloba for the electoral problems.

Chebukati sidestepped Chiloba in the October 2017 repeat presidential election, marking the beginning of his troubles. Chiloba would be forced out of the commission in April 2018 on suspension before summary dismissal in June the same year.

On 16 April 2018, three commissioners (Margaret Mwachanya, Paul Kurgat and Consolata Nkatha – vice chair) announced a surprise resignation, citing, “severe deterioration of confidence in the commission chair.” Mwachanya said. “We find our position as commissioners under his [Chebukati’s] leadership no longer tenable”.

Under his leadership the commission boardroom has become a venue for peddling money, misinformation, ground for brewing mistrust and a space for scrambling and chasing individual glory and credit

The three were protesting Chebukati’s suspension of Chiloba, backed by two commissioners – Boya Molu and Abdi Guliye.

“Under his leadership the commission boardroom has become a venue for peddling money, misinformation, ground for brewing mistrust and a space for scrambling and chasing individual glory and credit,” Mwachanya said.

“[The] three commissioners […] didn’t want us to ask [the] CEO any questions,” Chebukati later said.

Chebukati, Molu and Guliye soldiered on for three years without a quorum, having to build structures in a commission that had suffered a major setback in 2017 with the nullified presidential election. “Those were difficult moments,” he says. “But Commissioners Guliye, Molu and I could not falter on our oath of office.”

For four years, Parliament failed to act on the law that guides the recruitment of new commissioners until October 2020 when a new law was enacted.

The ‘Cherera Four’

By the time President Kenyatta declared the four IEBC vacancies (in April 2021) and thus put in motion a recruitment drive, the commission and the country were already in a pre-election mood.

Kenyatta was in a political cooperation deal with Raila Odinga, who later ran for presidency on an Azimio la Umoja One Kenya party, a political vehicle bringing together the two former protagonists.

At the time, Ruto was an outsider in government despite being the deputy president. “When I was shown the door and was operating from the streets as deputy president, there were people who were running this administration,” Ruto said in reference to Kenyatta and Odinga.

Through a selection panel dominated by Kenyatta’s Jubilee and Odinga’s ODM parties influence, eight names were recommended to Kenyatta for appointment as commissioners. Kenyatta settled on the now famous “Cherera Four”: Juliana Cherera (vice chair), Irene Masit, Justus Nyang’aya and Francis Wanderi.

“We didn’t know who was shortlisted, we only saw the names were gazetted [published],” says Erick Komolo, a lawyer in Nairobi. “There is nothing that has changed in the amendments [to recruitment law] that would compel the selection panel to disclose the performance of every candidate.”

The four commissioners were sworn in in September 2021, eleven months to the 2022 general election. “They seemed to be working very well,” says Gladys Boss, Kenya’s Deputy Speaker at the National Assembly.

The Bomas rupture

The Cherera Four were in December 2022 suspended by Ruto and a tribunal formed to probe their conduct around the presidential election for possible removal. They all resigned apart from Masit who awaits the decision of the tribunal.

When he appeared before the tribunal chaired by Court of Appeal judge Aggrey Muchelule, Chebukati accused members of the National Security Advisory Committee (NSAC) for seeking to manipulate the presidential election.

He [Chebukati] becomes the only chairman to leave without so much [political] baggage and accusations as he goes into retirement

He cited Hillary Mutyambai (former Police Inspector General); Kennedy Kihara (a former top official at the president’s office); Francis Ogolla (the vice chief of defence forces) and Kennedy Ogeto (solicitor general).

“The team said that if I declare Ruto as president, the country was going to burn,” Chebukati told the tribunal led by Court of Appeal judge Aggrey Muchelule on 24 January.

Chebukati accused Masit of agreeing with the NSAC delegation to “force a run-off” in the presidential election saying she “breached her oath of office”.

Chebukati becomes the first ever IEBC chair to testify against a fellow commissioner; the first chair deserted by seven commissioners on account of resignations; the first chair to sack a chief executive officer and to suspend a deputy chief executive officer (Ruth Kulundu) on account of post-election disagreements in the boardroom.

“He becomes the only chairman to leave without so much [political] baggage and accusations as he goes into retirement,” says Eric Theuri, chairman of the Law Society of Kenya, a professional body for Kenyan lawyers.

Murder plots

On 17 January, President Ruto alleged that the Bomas events were part of a plot to, “abduct Wafula Chebukati and murder him so that the commission would be paralysed, or a compliant commissioner (to) take over and subvert the people’s sovereignty”.

“It is extremely perplexing and […] I think the president has found himself in a position where if he moves forward with investigating those allegations, he is afraid of uncovering old wounds,” says Theuri.

During the August 2022 general election, Daniel Musyoka (an election manager in Nairobi) was murdered before he could conclude overseeing the Embakasi East constituency elections.

This was the second high profile murder of an IEBC official in just over five years after Chris Msando in July 2017. At the time of his death, Msando was the commission’s ICT manager, a crucial role for the electronic transmission of election results. More than five years later, Msando’s murder has never been resolved.

Chebukati believes a commission of inquiry “will enable a future election environment devoid of harassment, intimidation, profiling and harm of commission staff while discharging their election duties”.

Theuri wants the president to go beyond the Chebukati murder plot and find answers as to who was behind the murder of Msando and Musyoka, “and other […] IEBC officials who were threatened, abducted and released because they were found not to have information required”.

The LSK head however fears that it might be difficult for the police to objectively investigate. “Are they going to investigate with an aim in mind because the president has said, and therefore you cannot embarrass the president by saying that after investigations we did not establish that there was actually a plot to assassinate Chebukati?”

What next

Opposition leader Raila Odinga has consistently accused Chebukati of “stealing” his election. He recently embraced new data allegedly released by an unnamed “IEBC whistleblower” depicting Odinga to have won the election with 57% against Ruto’s 41%.

“The renewed calls to have Chebukati taken to jail is all politics because the political opposition wants a commission that is compliant, just like the government,” says lawyer Steve Ogolla.

Reconstituting the IEBC

On 23 January, Ruto passed a new law to pick new commissioners.

A panel of seven will be filled by five institutions, which will nominate between one and two nominees:

  • Parliamentary service commission – 2,
  • Law Society of Kenya – 1,
  • Interreligious council of Kenya – 2,
  • Public service commission- 1,
  • Political parties liaison committee – 1.

The president has the option of declaring the current six IEBC vacancies or waits and sees if commissioner Masit will be removed and therefore recruit all the seven at the same time.

“It would make practical and financial sense to await the outcome of the tribunal so that the replacement is done for the entire commission if Masit is removed,” says Ogolla.

Raila has already cautioned Ruto against what he terms exclusive reconstitution of the IEBC. “We demand that any attempts to reconstitute the IEBC single-handedly by Ruto cease forthwith so that Kenyans themselves can reconstitute the body after full and fair deliberations.”

“The process would then involve horse trading,” says lawyer Komolo. “One faction claiming the chair’s position, the other claiming the vice chair position and another claiming a commissioner.”

The process

Once the president declares the IEBC vacancies, the nominating bodies will be expected to within seven days present their picks to the parliamentary service commission (PSC). The commission will then forward the names to the president for appointment into the panel.

The IEBC Act provides that once formed, the selection panel shall – within seven days – invite applications from qualified persons for the chairman and commissioner positions.

Should the House approve the nominees, the president is required to appoint them to the commission within seven days. It took nearly five months to hire the Cherera Four in 2021.

An IEBC chairperson must be a lawyer qualified to be a judge of the Kenyan Supreme Court, meaning with at least 15 years of legal experience. Members of the commission, on the other hand, are required to have a university degree with relevant experience in electoral matters, management finance, governance, finance, public administration or law.

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