The Independent Electoral and Boundaries Commission (IEBC) vice chairperson Juliana Cherera resigned on Monday, December 5, throwing the impending probe by the tribunal in limbo.
Cherera joined a list of government employees who quit with pending investigations.
Kenyans.co.ke looks at what the law says about civil servant resign with pending cases hanging around their necks.
Speaking to Kenyans.co.ke lawyer Martin Oloo explained that the petition against Cherera automatically withered and died after her resignation.
“The purpose of the petition was to remove the commissioners, but now if they resign it means they will not appear before the tribunal,” he explained.
“You only discuss what is before you, and if all commissioners resign then there will be no case for the tribunal to discuss,” he added.
His statements were corroborated by another advocate of the High Court, Duncan Okatch who spoke to Kenyans.co.ke.
“Once you resign that process ought to end, the investigation process aims to recommend your suitability to hold office and once you resign it becomes inconsequential,” Okatch explained.
Resigning amid probe
On whether it is wise to resign in the existence of a pending case, Oloo explained that resignation is a guaranteed constitutional right and Cherera acted within her rights.
“A resignation is allowed at any stage for any employee, and you can resign without due regard of the process.”
“There is a distinct difference between a pending case and resignation though, resignation does not mean you stop facing a continuing case in court,” the veteran lawyer explained.
“Investigations by other agencies like the police cannot be stopped just because a state officer has resigned,” Okatch collaborated.
Oloo further noted that Cherera is a constitutional officer holder and enjoys constitutional protection which requires that only a tribunal can order her removal.
This is different from other state officers who do not enjoy such protection, as some serve at the mercies of the appointing authority - the President.
Tribunal Powers
On whether the tribunal could have initiated criminal proceedings on the IEBC commissioners, Okatch revealed that the tribunal does not have such powers.
“In terms of any criminal culpability, there are other agencies to deal with that,” Okatch cleared the air on the powers of the tribunal.
“Article 251, Sub Article 6 gives tribunal power to make abiding recommendations to the President using available facts,
“So they can make any recommendations as long as they are in line with removal from office because this is not a criminal empowered tribunal,” he quickly added.
Not yet over
What could have happened if the tribunal had found Cherera unfit from holding office, Oloo explained that she would have been removed from office but the law gives her the right to challenge the tribunal findings.
Okatch explained that it is not over for the IEBC commissioners who resigned as any Kenyan can file a criminal case against them but noted chances of such case going through was slim.
“Any Kenyan can write a formal complaint for Cherera and other commissioners to be investigated.”
“However unless you point out a specific criminal act committed, the case cannot sustain and also the commissioner is protected by law in whatever they do in good faith,” the seasoned lawyer told Kenyans.co.ke.
