The clamour for the Independent Election and Boundaries Commission (IEBC) vice chairperson, Juliana Cherera, to replace her boss, Wafula Chebukati, as the chair was heightened by Azimio La Umoja flagbearer, Raila Odinga.
Raila who spoke at a rally in Mombasa on Wednesday, August 24, claimed that Cherera was a better fit to lead the Mombasa and Kakamega gubernatorial elections scheduled for Monday, August 29.
His sentiments elicited mixed reactions from various quarters with the IEBC itself accusing him of misleading the public. IEBC clarified that the elections will be conducted by gazetted returning officers as stipulated by the law.
Critics of the former Prime Minister also accused him of harbouring selfish interests especially after Chebukati fell out with Cherera and three other commissioners, Justus Nyang’aya, Francis Wanderi, and Irene Masit. But can Cherera take over from Chebukati?IEBC Chairman Wafula Chebukati and Vice Chair Juliana Cherera at Bomas of Kenya meeting party candidates on August 22, 2022Kenyans.co.ke
Election Act Section 7A states that "should a vacancy of a chairman of IEBC, the vice chairperson shall act as the chairperson and exercise the powers and responsibilities of the chairperson until such a time a chair is appointed."
Kenyans.co.ke reached out to lawyers to establish whether IEBC Vice Chair Juliana Cherera has the capacity to lead the commission.
According to lawyer Martin Nyakundi, IEBC's Vice Chairperson can take over as the chair in an interim capacity until such a time when a successor is found.
She, however, cannot perform key functions as an acting chair like overseeing a presidential election or declaring a winner in a presidential election. According to Nyakundi, an interim chair can only perform the normal roles within the Commission like approving budgets and chairing meetings.
"An interim capacity does not involve overseeing an election, but the day-to-day functions inside the commission. IEBC chair stands alone as the National Returning Officer,"
Should an election occur with her in an acting capacity, Nyakundi said a gazette notice recognizing Chebukati as the chair of IEBC shall be withdrawn and the Public Service Commission (PSC) advertise for the position.
The gazette notice which was published when Chebukati was confirmed as the chairperson will be withdrawn.
"IEBC is an independent organ which cannot be interfered with. PSC must advertise for the position of chair of IEBC before any election is held. Approval of a new chair must then undergo a parliamentary process."
Another lawyer, Kakai Kissinger argued that the vice chair will perform the roles of the chairperson with strict limitations.From left, IEBC Commissioners Chairman Wafula Chebukati, Juliana Cherera, Justus Nyangaya and Francis Wanderi
Kissinger opined that Cherera does not meet the qualifications of a chairperson as she doesn't fit to be a judge of the Supreme Court.
"The constitution states clearly that the chair of IEBC must be a qualified judge of the Supreme Court and the push by Azimio for Cherera to take over from Chebukati is unfounded" Kissinger stated noting that should the Supreme Court order for a re-run, then it shall be conducted with the current commissioners.
The exiled lawyer Miguna Miguna criticised Raila for vouching for Cherera. Miguna argued that it was impossible for her to take over the IEBC mantle based on the fact that a chairman of the commission must be a licensed advocate qualified to serve as a judge at the apex court.
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