The petitioner argued that Mr Chebukati was unsuitable to steer the country in the forthcoming elections as the electoral agency was ill-prepared for the polls
The High Court has struck out a case filed by a voter seeking to bar Independent Electoral and Boundaries Commission chairman Wafula Chebukati from leading the 2022 General Election.
The voter, Samwel Clinton Elijah, wanted Mr Chebukati kicked out of office over alleged violation of the Constitution and the agency’s indictment by the Supreme Court over election irregularities in 2017.
But Justice Hedwig Ong’undi yesterday ruled that the petition was bad in law and incompetent as the court lacks the authority to remove Mr Chebukati from the constitutional office.
The judge said the proper procedure for removing Mr Chebukati is by presenting a petition to the National Assembly setting out the alleged facts that form the grounds for removal.
Under Article 251 of the Constitution, lawmakers will then consider the petition and, if satisfied with the arguments, send it to the President.
On receiving a petition, the President may suspend the office holder pending the outcome of the complaint. The President is required to appoint a tribunal to investigate the complaint.
Justice Ong’undi allowed a preliminary objection raised by Mr Chebukati’s lawyer, Erick Mutua, against the court proceedings, arguing that the Constitution provides the mechanisms for removing such an office holder.
“The effect of the orders sought by the petitioner is removal of Mr Chebukati from office. There is no proof he has violated the Constitution. The Constitution provides how a member of a constitutional commission and holder of an independent office may be removed from office,” the lawyer argued.
According to the petitioner, Mr Chebukati was unsuitable to steer the country in the forthcoming elections because the electoral agency was ill-prepared for the polls.
He also argued that citizens have no confidence in Mr Chebukati’s ability to steer the IEBC in preparation for the General Election.
For instance, Mr Elijah said, the IEBC chairman had failed to take the necessary steps to fill critical positions and build the agency’s capacity, especially hiring substantive office holders in the secretariat.
He pointed out the lack of a substantive chief executive officer following the sacking of Ezra Chiloba in 2018.
He added that the IEBC had failed to address gaps cited by the Supreme Court that affected the 2017 polls leading to the nullification of the results of the presidential poll.
The court found that the presidential election was marred by irregularities and illegalities.
Mr Elijah also said the IEBC had failed to provide details on how it arrived at the sum of Sh40 billion as its budget to conduct the 2022 elections.
He also argued that the IEBC had been indicted by the National Assembly’s Public Accounts Committee over misuse of funds and lack of accountability.
Mr Chebukati is facing another ouster threat in a petition filed by rights activist Khelef Khalifa over alleged contempt. The petitioner argues that Mr Chebukati failed to obey a Supreme Court order to produce the 2017 presidential election results servers.
He wants the court to commit him to civil jail for six months or bar him from holding the office of chairperson of the IEBC.
He says Mr Chebukati continues to disobey Supreme Court orders compelling him to open the servers used in the disputed 2017 presidential election.
The apex court directed that an ICT officer designated by the court and two independent IT experts be appointed to supervise access to the technology, including servers, held by the IEBC for the 2017 presidential election.
But Mr Chebukati objects to the petition, arguing that no order was issued to him personally although he was a party in the election petition filed by Orange Democratic Movement leader Raila Odinga.
“I was never sued in my personal capacity in the Raila Odinga case. In nullifying the 2017 presidential election result, the Supreme Court did not impute any criminal intent or culpability on me or any other Commissioner,” he says. BY DAILY NATION