Justice Njoki Ndung'u Questions Chebukati's Super Powers

Lady Justice Njoki Ndung'u following proceedings of the presidential petition at the Supreme Court on Thursday, September 1, 2022.
Lady Justice Njoki Ndung'u following proceedings of the presidential petition at the Supreme Court on Thursday, September 1, 2022.
Courtesy Judiciary

Justice Njoki Ndung’u questioned the decision by the Independent Electoral and Boundaries Commission (IEBC) chairperson Wafula Chebukati to assign menial duties to other commissioners.

Posing her questions during the presidential petition at the Supreme Court, on Thursday, September 1, Justice Ndung'u asked the IEBC to explain why Chebukati wielded so much power rendering the rest of the commission almost powerless.

She noted that the drafters of the Constitution introduced independent commissions and offices to deal with issues of tyranny and accountability and do away with instances where one person had so much power in these offices.

Justice Ndung'u asked former Attorney General Prof Githu Muigai to explain why the narrative in court was that Chebukati was a very powerful commissioner and who regulated him.

Lady Justice Njoki Ndungu at the Supreme Court on September 1, 2022.
Lady Justice Njoki Ndungu at the Supreme Court on September 1, 2022.
The Judiciary of Kenya

"From the narrative, we are hearing in court, there seems to be an all-powerful chair. What would happen if he was to announce the wrong results, mentally incapacitated, sick or has passed away?" she posed.

Further, Justice Ndung'u wanted to know why the Chairperson of the IEBC had given a lot of power to the CEO of the electoral commission yet he was not vetted by Parliament for the role.

"What is the check for this powerful commissioner if the other commissioners have nothing to do with his role? What is the role of the other commissioners since it seems the chairperson works closely with the CEO who was not vetted by parliament and I don't think that was the role of the drafters of the constitution," Justice Ndung'u stated.

"I am asking this question in order to understand the leadership and management of the commission and not necessarily the presidential election," she added.

Prof Githu Muigai was also put to task to explain the role of the other commissioners and how results from other elective seats are transmitted to the public.

IEBC Chairman Wafula Chebukati and Vice Chair Juliana Cherera at Bomas of Kenya meeting party candidates  on August 22, 2022
IEBC Chairman Wafula Chebukati and Vice Chair Juliana Cherera at Bomas of Kenya meeting party candidates on August 22, 2022
Kenyans.co.ke

"What happens (till they are gazetted) to the other results at the constituency and County levels such as the Governor, Senator, MP, Women Rep and MCA results," she posed.

The conflict within the IEBC pit three commissioners chairperson Wafula Chebukati, Abdi Guliye and Boya Molu against the four commissioners led by vice-chairperson Juliana Cherera, Francis Wanderi, Irene Masit and Justus Nyang’aya.

The two factions accused each other of committing electoral malpractices in the recently concluded General Election, casting doubt on the credibility of the process.

According to the Chebukati-led group, Cherera and her partners conspired with public officers to “subvert the will of the people”. 

On the other, Cherera and the three other commissioners accused the IEBC chairperson of running a one-man show in the months leading to the election and eventually presiding over a “sham” process.