Thursday, October 19th, 2017
When city billionaire Jimi Wanjigi emerged from the shadows this week, he not only dropped some political bombshells — but also confirmed what was the talk of town: He is the ultimate kingmaker.
For the first time, the tycoon, who made his billions cutting government deals and tenders, was forced to speak in public, and on live TV, during a press conference at his 44 Muthaiga home, where opulence, power and abundance loom large.
Jimi, as he is known, was angry and eloquent; — even livid. “This is personal,” he said. “It is persecution!”
But has he come to play politics openly — in the footsteps of his father, a former Moi cabinet minister and MP for Kamukunji, the Stanford-trained James Maina Wanjigi.
On Thursday, he returned to the courts for justice and got some reprieve as Justice Chaacha Mwita barred the police from arresting him until December 9.
The Director of Public Prosecutions had claimed that there was reliable information on the commission of an offence. Police had initially said that they found some five guns in a Malindi villa — an allegation dismissed by Mr Wanjigi.
While the office of the DPP told the court that the matters under investigation were very serious and pose a serious threat to National Security and Public Service, Justice Mwita declined to set aside the Sh50,000 anticipatory bail issued on Tuesday, October 17.
That he had come out to play hardball politics was not lost on observers. Mr Wanjigi was neither meek, nor timid and it was clear that he had emerged to confront his accusers.
By his side were National Super Alliance (Nasa) luminaries Raila Odinga, James Orengo, Moses Wetang’ula and tens of supporters who had come to offer him political comfort after a harrowing 72 hour-siege that was only lifted by a court order.
It was here, he told the press after the police left, where President Uhuru Kenyatta, Deputy President William Ruto and former Prime Minister Odinga met after the ruling on the 2013 presidential election petition and shook hands.
This, he also said, was where President Kenyatta’s government was formed. Neither Uhuru, nor Ruto has denied earlier association with this influential power-broker who has since shifted his loyalty to Mr Odinga, a man he calls “Baba”.
The admission was the first signal of how Kenya has become a plutocracy — a government by the wealthy — whose broken political system is now always controlled by the uber-rich tenderpreneurs who pull the strings of power.
That the businessman could invite, nay summon, the two leading contenders in a presidential race to his house is an indicator of how the political system is tilted against the ordinary citizen and how those with obscenely large amounts of money — old money and new money — control both the economic and political stakes.
Before they fell out, Mr Kenyatta, Mr Ruto and Mr Wanjigi were close allies. So close, that in his book, former Vice-President Kalonzo Musyoka, recounts how Mr Wanjigi accompanied them to his house to break the bad news: Kalonzo would not be on the presidential ticket and should pick another position.
For his part, Mr Ruto told a television host in July this year that Mr Musyoka introduced them to Mr Wanjigi and that “he (Kalonzo) knew him better”.
But Mr Musyoka denied the allegations, saying the DP and Mr Wanjigi were friends who fell out over the mega deals of the standard gauge railway and the Jomo Kenyatta International Airport’s planned second runway after Jubilee won the 2013 elections. He also challenged Mr Ruto to deny that Mr Wanjigi assisted them to “fix” the 2013 elections.
Whatever the truth, it is now known on the day that Mr Kenyatta and Mr Ruto were waiting for the announcement of presidential results in 2013 at a house in Karen, Mr Wanjigi drove to the scene and sat between the two. The three were deeply engaged in some light banter and laughter. Someone was taking photos to capture the moment.
The friendship, according to insiders, ran until December 2013 when President Kenyatta was the guest of honour during the launch of the elder Wanjigi’s autobiography, The Shepherd Boy, at the Serena Hotel, Nairobi, shortly before the President flew to South Africa for Nelson Mandela’s funeral.
A week earlier, the President had also broken ground for the construction of the Sh64 billion Greenfield airport terminal at JKIA — another project associated with Mr Wanjigi.
The President, according to close allies, was angry that some lawyers wanted to block the building of the Sh330 billion standard gauge railway, which had been removed from Mr Wanjigi’s hands and became a government-to-government deal between Kenya and China. As a result, Mr Wanjigi, who claimed this to be his pet project, was financially sidelined.
Whether this fallout — and his latter shift to backing Nasa — is the source of friction between him and the Jubilee government is open to debate. Mr Wanjigi has said that he reads politics in the dramatic raid of his house, a villa in Malindi, his office on Nairobi’s General Mathenge Drive and Caramel, the high end restaurant in Westlands.
While Mr Wanjigi engaged the police in a hide-and-seek game and they were unable to get him, and that the matter has now taken a political turn, might see Mr Wanjigi occupy a front seat in politics.
Previously, he was at peace playing cards behind closed doors.
Even as the push and pull over next week’s repeat poll intensifies, politicians and analysts were yesterday mulling over the state of Kenya’s politics and how the two main political formations contributed to the crisis.
National Super Alliance’s Raila Odinga on October 10 withdrew from the race, accusing the electoral agency of failing to address the concerns he has raised as a condition for his participating in the repeat poll.
Mr Odinga’s withdrawal, the resignation of IEBC commissioner Roselyn Akombe and the statement by IEBC chairman Wafula Chebukati that he couldn’t assure of a credible election, have cast a shadow on the election, just a week away.
But even as Mr Odinga dug in over the reforms in IEBC, analysts the Nation spoke to appeared to suggest that the demands masked deeper troubles within the opposition coalition.
Nasa is yet to have any meaningful campaign programme since the Supreme Court ordered fresh presidential elections on September 1, while President Kenyatta has been on the roll, addressing up to five rallies a day in various parts of the country.
The opposition coalition has also, in the wake of the historic ruling, been hit by defections of key candidates who lost on August 8, denying it the much needed generals on the campaign trail and handing Jubilee Party a foothold in the so-called Nasa strongholds of Western, Kisii and Maasailand.
Makueni Senator Mutula Kilonzo on Thursday admitted that failure to campaign has dented Nasa’s support in some areas where it enjoyed popularity.
“Our support is not the same as it was before August 8 because some of our supporters are weary because of the long-drawn-out campaigns,” he said, even as he insisted Nasa retains a strong presence in Ukambani.
The region has, however, has not come out strongly in the anti-IEBC protests.
Nasa’s woes have been worsened by the fact that Jubilee Party has raided its strongholds and lured some of its strongest defenders to its side.
They include former governors David Nkedienye (Kajiado) and Moses Akaranga (Vihiga) as well as governor candidates Paul Otuoma (Busia), Musuni ole Tiampati and Patrick ole Ntutu both of Narok.
Former Wiper party Secretary-General Omar Hassan and former Vihiga MP Yusuf Chanzu are some of the leading lights in their regions who have joined the Jubilee bandwagon.
Jubilee Party also won critical seats in some Nasa strongholds such as Western which provided a perfect launch pad for its campaigns.
Save for Makueni County, Jubilee also put up a good show in Ukambani, the home turf of Nasa presidential running mate Kalonzo Musyoka, winning two National Assembly seats in Kitui and one in Machakos County.
In Maasailand, President Kenyatta won Narok with 149,376 votes against Mr Odinga’s 129,360 and retained the neighbouring Kajiado (186,481 against Mr Odinga’s 138,405).
In Gusiiland, he surprisingly surged past Mr Odinga in Nyamira, getting 106,508 votes against Mr Odinga’s 95, 277, in a county where he had only 54,071 of the votes in 2013.
The gamble by Nasa to field several candidates from affiliate parties in battlegrounds and perceived stronghold counties also hit them hard with the coalition failing to win a single parliamentary seat in Kisii County, hurting its numbers in Parliament.
President Kenyatta swept northern Kenya, upstaging Mr Odinga in Garissa, Isiolo and Wajir, while retaining Mandera County.
In the region, President Kenyatta maximised the Leader of Majority Aden Duale’s position, while carefully navigating clan politics by allowing politicians there to form their own parties but agreeing to back him for the top job, a masterstroke that paid off in the vast region with about 500,000 votes.
“President Kenyatta’s win was a cumulative effort, especially in northern Kenya and Maasailand. One of development playing a large part, and that of us being inclusive in the government affairs,” said Jubilee secretary-general Raphael Tuju.
Senate Majority Leader Kipchumba Murkomen argued that it was all about Jubilee’s manifesto.
Other analysts we spoke to, however, pointed to Jubilee’s unabashed exploitation of the state machinery which made it impossible for Nasa to raise funds abroad. The analysts argued that this is the reason for Nasa’s lacklustre campaigns and the unwillingness, or inability, to go back to the campaign trail.
“Realising that there is no level playing field on which they can fairly dislodge Jubilee from power, Nasa’s strategy seems to be to precipitate a crisis so as to get a foothold in government,” argued policy analyst Nyaga Kindiki.
Prof Kindiki, however, warned that the strategy was risky because “one can only go so far “without attracting isolation from the international community and even possible prosecution by the ICC.”
But political analyst Martin Andati argues that in the wake of the revelation by Mr Chebukati and Dr Akombe, the focus has turned to the commission and whether it is properly prepared to conduct the poll.
President Uhuru Kenyatta and his deputy William Ruto on Thursday vowed to protect voters who will turn up to cast their ballots next Thursday, saying anyone who will attempt to disrupt the polls will face the law.
They said the government will provide security for Kenyans who will participate in the repeat presidential election to protect them from attacks by Nasa supporters.
The leaders said the Supreme Court had ruled that the elections must be held within 60 days, adding that they were not ready for any postponement.
Speaking at a rally in Sirisia, Bungoma County, the duo said they had accepted the Supreme Court ruling on the repeat elections and gone to the people to seek votes.
The President said the only people who would decide who to lead are the voters. “I never went to Supreme Court but we respect the court’s decision. The court said elections should be held within 60 days, and should be overseen by IEBC. We are ready for the polls, let Raila stop issuing threats and unnecessary demands. Let Kenyans decide during the polls,” he said.
The Head of State said opposition leader Raila Odinga was only pursuing a coalition government and was not interested in the elections.
“Let him face us at the ballot so that we can gauge the most popular candidate. Threats and mass action cannot help any Kenyan,” he said.
He said millions of Kenyans were ready to vote next week, saying their rights would be violated if elections are not held.
“Raila and I cannot stop any Kenyan from voting for their leaders. It’s a personal decision to vote or not to vote. Even if he reaches out to western countries, they cannot stop Kenyans from voting,” he added.
Mr Ruto said Mr Odinga was not ready for the polls, and termed his demands and insistence on conditions in an election he has withdrawn from impunity and dictatorship.
“He has quit the race, called for mass action and is now attacking IEBC officials including returning officers and polling officers. Is he the leader that should be trusted to lead this country?” Posed Mr Ruto.
“Kenyans will decide who their President will be. We can’t be dictated upon by one individual. We are tired of your endless demands, let us put a end to violent riots,” he added.
And speaking at Nandi Hills, the President said that since Mr Odinga was not interested in the polls, he should stay out of the preparations instead of rallying his supporters to sabotage the exercise. “The poll was sanctioned courtesy of Odinga’s petition, hence Nasa cannot go ahead to condition IEBC to stop the exercise,” said President Kenyatta.
Mr Ruto told IEBC chair Wafula Chebukati to focus on preparations for the repeat poll instead of issuing conditions.
Reported by Dennis Lubanga, Titus Oteba and Philip Bwayo
Cash problems have made the Treasury to advance some county governments Sh20.3 billion in the three months to September for workers’ salaries after the Senate failed to agree with a money allocation law approved by the President.
Treasury CS Henry Rotich Thursday said he did not give counties money because the schedule in the County Allocation of Revenue Act 2017 assented to by President Uhuru Kenyatta differed from the one approved by the Senate.
The minister said he was waiting for clarification from the Senate before disbursing the money, meaning county governments will wait longer for their allocation.
According to the latest Kenya Gazette notice, no county received allocations from the government’s main account in the first quarter that ended in September.
Instead, the counties were loaned Sh20.3 billion by the Treasury. The amount is less than a third of the Sh75 billion the counties expected.
This has stalled projects, delayed workers’ pay and frozen payment to suppliers.
In Nairobi, City Hall said it was unable to pay September salaries.
Counties received a Sh2.4 billion advance from the Treasury in September, which is less than 10 per cent of their monthly cash requirements — highlighting struggles the devolved units are going through to meet their obligations.
“The schedule of disbursement approved by the Senate was in variance with the County Allocation of Revenue Act 2017. The National Treasury is awaiting clarification from the Senate,” said Mr Rotich.
“In the meantime, Treasury advanced Sh20,434,075,558 to some county governments to enable them pay salaries and provide essential services.”
The Act specifies what every devolved unit gets, based on a revenue-sharing formula approved by Parliament.
Total allocation to the counties in the current financial year stands at Sh329.96 billion, which consists of the equitable share of national government revenue of Sh306.2 billion and conditional grants of Sh23.3 billion from the State and development partners.
The law requires the National Treasury to disburse counties’ share of revenue by the 15th of every month.
A number of schools are hurriedly closing ahead of Thursday’s fresh presidential election, with parents asking the government to beef up security for candidates who have remained in schools.
On Thursday, several students were spotted in Nairobi heading home, with schools set to reopen on January 2.
Mangu High School in Kiambu County closed on Thursday, while Maseno School in Kisumu, among other schools, will close on Friday.
The schools are closing early to allow students to travel home safely as political temperatures escalate due to the election. According to the Ministry of Education timetable, all primary schools will close for Christmas holidays on October 25. Students in Form One, Two and Three will close on October 24.
Kenya Secondary Schools Heads Association chairman Kahi Indimuli said teachers have a responsibility to ensure students are safe.
Similarly, National Parents Association chairman Nicholas Maiyo said the government has a responsibility to ensure that more than 1.6 million candidates are safe as they sit for their examinations.
“We need that assurance from the government that our children will not be affected by the politicking,” said Mr Maiyo.
On Monday, Form Four candidates will sit for the first practical paper, while Standard Eight pupils will write their examination starting October 31.
The practicals — French (oral), German (oral), Arabic (oral) Kenya Sign Language, Braille, music, building and construction and home science — will end on November 3.
According to the timetables already sent out to schools, Kenya Certificate of Primary Education examinations will begin on October 31 and end on November 2, while KCSE theory papers will start on November 6 and end on November 29.
At the same time, universities have closed, to allow students and staff to participate in the elections.
Jomo Kenyatta University of Agriculture yesterday closed its main and Karen campuses. Students are expected to resume studies on October 30.
Registrar of Academics ET Mworia said students who wish to remain in the university should give out their names to the dean of students immediately for planning.
ORDERED TO LEAVE
Maseno University closed on Wednesday and students were ordered to leave by Thursday morning.
Masinde Muliro University of Science and Technology has also closed.
A circular signed by the acting Registrar of Academic Affairs Carolyne Onyancha said lectures will resume on October 30.
Nasa leader Raila Odinga on Thursday said he was willing to “reconsider” his stand on participating in next week’s fresh presidential elections, if his demands are met.
However, he described as a vindication of the Nasa cause, the resignation of Dr Roselyn Akombe from the Independent Electoral and Boundaries Commission and her revelation of deep divisions in the polls body.
“If proper consultations are done and if proper reforms are carried out, and those fears that we raised are addressed, then we will reconsider,” Mr Odinga said.
“But as it stands right now, our position is (as) we announced it yesterday,” he stated.
Mr Odinga was speaking outside Anniversary Towers after a 40-minute meeting with IEBC chairman Wafula Chebukati.
The National Super Alliance (Nasa) leader said that after commissioner Akombe’s resignation, and a statement by Mr Chebukati to the effect that he could not guarantee a credible election, it was clear that the commission needed extensive reforms.
“That (the Dr Akombe resignation and Mr Chebukati’s statements) basically confirmed our fears, and our reasons for pulling out of this race. It is now clear to anybody that the environment does not exist for a free and fair election,” Mr Odinga, who was accompanied by Nasa co-principal Musalia Mudavadi, said.
He added: “There are things happening over which the chairman has no control over. So we said instead of wasting money and going to a charade, we will rather pull out.”
Mr Odinga rubbished comments by President Uhuru Kenyatta and his deputy William Ruto that he said suggested he was begging for a meeting.
“You know what the Jubilee people said yesterday. Under those circumstances, is it still proper to meet with Kenyatta? It is made to look as if I am begging . . .,” Mr Odinga said.
Even if he were to talk with President Kenyatta, he said, the current environment did not allow it.
“I do not know how many times I need to tell them (that I do not want a nusu mkate (coalition government). I do not want to appear as if I am going to beg. I do not need anything from the so-called William Ruto,” he said.
Thursday’s meeting was called by Mr Chebukati a day after he issued a nine-page statement where he gave conditions for his continued stay at the helm of the commission.
The self-effacing chairman asked the political class to keep off the IEBC and stop intimidating its employees, warning that he will not hesitate to crack the whip against them. He asked IEBC staff he said had been adversely mentioned to step aside.
Thursday’s meeting, Mr Chebukati said, will be followed by another one he plans to have with President Kenyatta. Earlier yesterday, the commission had cancelled a planned joint meeting with the eight presidential candidates at Serena Hotel, with a communication saying it was awaiting for a mutually agreed date.
“He has told us that he will meet President Kenyatta on Monday, before he can make a decision,” said Mr Odinga.
The National Super Alliance has demanded the resignation of IEBC chief executive Ezra Chiloba, commissioners Abdi Guliye and Boya Molu, and nine senior staff, the change of the ballot paper printer and the elections technology provider before the fresh poll ordered by the Supreme Court when it annulled President Kenyatta’s August 8 win.
Mr Mudavadi challenged Mr Chebukati and Dr Akombe to name the people they said had been interfering with the commission.
The Anglican Church of Kenya has suffered a blow after a court refused to stop implementation of a directive requiring it to pay Sh6.8 million to three priests accused of homosexuality.
Justice Byram Ongaya of the Employment and Labour Court in Nyeri also dismissed an application by the church to have the September 9, 2016 judgment reviewed.
Justice Ongaya further declined to have Mt Kenya West Diocese Bishop Joseph Kagunda and the Church Commissioners for Kenya enjoined in the case as respondents.
Through its lawyer Wachira Nderitu, the church argued that the bishop was denied a right of reply before the decree of awarding the damages was pronounced in respect to the three clergymen.
Pastors Paul Warui, John Gachau and James Maigua were awarded Sh6.8 million for defamation and reinstated to their pastoral duties after being suspended by the church standing committee over the homosexuality allegations.
The three said their reputation and integrity were damaged, eroding their dignity among the congregation and the public.
Mr Nderitu told the court that if any claim was to be executed and complied with, it could only be by the sitting diocese bishop and CCK, “not the registered trustees of the Anglican Church of Kenya, as indicated by the priests”.
The court allowed amendments to the suit to read that the judgment was against CCK and not the church trustees.
The judge said the orders to reinstate and compensate the priests were not directed to the bishop in his individual capacity “since he is not the priests’ employer”.
The court added that Bishop Kagunda was aware of the proceedings in the main suit and the case was concluded without seeking enjoinment until long after the judgment was entered in favour of the three priests.
The court said that allowing a review of the judgment would be an abuse of the legal process since the church had already moved to the Court of Appeal to challenge it.
“No satisfactory reasons have been given to set aside the judgment. The application cannot be entertained,” Justice Ongaya said.
The priests, through their lawyers Moraa Onsare and David Onsare, had asked the court to disallow the application, terming it frivolous.
“It is an embarrassment to the legal process and the application aims at denying the claimants fruits of their litigation,” Mr Moraa Onsare said.
He added that the priests were embarrassed and maligned after being suspended from their duties.
The lawyer said the compensation and reinstatement orders did not have any adverse effects on Bishop Kagunda.
Thousands of land cases that have stalled in magistrates’ courts across the country can now proceed after five judges of the Court of Appeal reversed a decision barring the lower courts from handling the disputes.
They set aside orders issued by the High Court in November last year, quashing laws enacted by Parliament, conferring powers to magistrates’ court to hear land and employment disputes.
The High Court had declared that it was illegal for Parliament to confer jurisdiction on the magistrates’ courts to hear land disputes.
The Act giving effect to Articles 23(2) and 169(1)(a) and (2) of the Constitution was enacted and assented to by President Uhuru Kenyatta on December 15, 2015.
It came into effect on January 2, 2016.
The case also questioned whether specialised courts have exclusive jurisdiction to determine disputes relating to employment and labour relations and the environment and the use and land occupation.
The appeal was filed by Nairobi Law Society of Kenya, the Attorney-General and two other branches of the LSK. In his submission, the AG, through Mr Waigi Kamau, asserted that the High Court misunderstood and misinterpreted the law and failed to purposively and holistically interpret the Constitution. He said the decision had created uncertainty.
In their judgment on Thursday, appellate judges Philip Waki, Roselyn Nambuye, Daniel Musinga, Gatembu Kairu and Agnes Murgor ruled that conferring jurisdiction on magistrates’ courts to hear and determine land matters, does not diminish the specialisation of the specialised courts.
They said appeals from the magistrates’ courts will still end up in the specialised courts.
They said Kenyans cannot be barred from accessing justice and it was a fact that magistrates’ courts were more than the High Court.
“There are undoubtedly more magistrates’ courts in Kenya than there are specialised courts or even High Court stations. The close proximity of magistrates’ courts to the people ensures efficiency and access to justice at reasonable cost,” said the judges.
President Uhuru Kenyatta’s Jubilee Party has sued opposition leader Raila Odinga and his running mate Kalonzo Musyoka at the Supreme Court, accusing them of disobeying court orders by planning to disrupt the October 26 election.
The party wants the two found in contempt of court, an offence punishable by six months in jail.
In an application certified as urgent by the Deputy Chief Justice Philomena Mwilu, Jubilee accuses the National Super Alliance (Nasa) presidential pair of disobeying a court order, which directed the Independent Electoral and Boundaries Commission (IEBC) to conduct fresh elections within 60 days after the court’s September 1 judgment.
Jubilee argued that Nasa, which successfully petitioned the Supreme Court to nullify the August 8 presidential election, has “embarked on a calculated scheme, including through use of violence and threat of unlawful sabotage of the elections.”
CONTEMPT OF COURT
According to lawyer Tom Macharia, the actions amount to contempt of court and their actions “seriously imperil the efficacy and integrity” of the court order.
Nasa leaders have organised protests demanding the sacking of IEBC chief executive Ezra Chiloba, commissioners Abdi Guliye and Boya Molu, and nine other senior staff, the change of the ballot paper printer and the elections technology provider before the fresh poll.
The electoral commission says it has complied with 20 of Nasa’s 34 demands with the rest being either outside its authority or requiring more than is constitutionally available.
“These protests, which have led to destruction of properties and loss of lives, are aimed at creating an environment where it is not possible to hold an election. This is in the hope that the 1st Respondent may succumb to the extortive conduct perpetrated by the Petitioners, fail to organize any elections and plunge the country into a constitutional and political crisis,” Jubilee Secretary General Raphael Tuju said in a supporting affidavit filed by Mr Macharia in court.
Mr Odinga called the protests, which have led to the deaths of demonstrators in Kisumu and Siaya, after he wrote a letter to the IEBC, saying he had withdrawn from the October 26 elections and demanding a new poll 90 days after fresh nominations.
Jubilee Party secretary-general Raphael Tuju addresses journalists in Nairobi on October 19, 2017. Looking on is the party’s administrator, Ms Mercy Kanyara. PHOTO | EVANS HABIL | NATION MEDIA GROUP
On Tuesday, Mr Odinga said he had suspended the protests to mourn those who have died and Nasa asked supporters to attend a Mashujaa Day rally today where he will give direction.
Yesterday, Mr Tuju said Jubilee will not heed to the call to negotiate with Mr Odinga over the fresh poll, asking the IEBC to seek the Supreme Court advice, instead, if there is doubt or ambiguity.
While he argued that the party was free to meet Mr Chebukati to be updated on poll preparations, at no time should those meetings decide on things that the Supreme Court has exclusive jurisdiction upon.
“As a referee, he (Mr Chebukati) cannot call the teams and ask them: Hey guys, when do you want us to hold the elections? What rules should we use? In other words, there is no room for dialogue,” Mr Tuju told journalists at the Jubilee Party headquarters in Pangani, Nairobi.
He went on: “The role of the IEBC chair is to be the referee of the presidential election, not the mediator of political contests.”
When she certified the application as urgent, Lady Justice Mwilu directed Jubilee to serve the application together with submissions to Mr Odinga and his running mate, Mr Musyoka, by Monday and the two Nasa leaders to file their responses the following day.
The case, she directed, will be mentioned before the Deputy Registrar of the Supreme Court on October 27, a day after the election.
Following a petition filed by Mr Odinga, Chief Justice David Maraga agreed with DCJ Mwilu, Justices Smokin Wanjala and Isaac Lenaola that the electoral agency messed up the transmission of poll results.
“A decision is hereby issued that the elections held on August 8, were not conducted in accordance with the Constitution and the applicable law. The results are therefore invalid, null and void,” he ruled. The top court in the land subsequently ordered the IEBC to conduct a fresh presidential election within strict confines of the law in 60 days.
In his affidavit, Mr Tuju said the protests demanding the exit of IEBC officials is meant to intimidate the Commission, so that they do not implement the court order.
The Jubilee official told the court that in compliance with the court directives, IEBC and its chairman Wafula Chebukati gazetted the candidates for the repeat poll and set the election date for October 26.
However, he said, Mr Odinga and Mr Musyoka as well as their agents, including MPs under their directions, are engaging in making obnoxious threats and use of insolent language against the Commission.
“The petitioners are hell-bent and intent on creating serious impediment to the 1st and 2nd Respondents preparation for a fresh election as ordered,” he said and urged the court to grant them the orders sought “as it is imperative for the maintenance of the rule of law and good order that the authority and dignity of this Court is upheld.”
The Jubilee secretary general said he is apprehensive that the Nasa leaders will continue with their actions, thereby prejudicing the other candidates and the people of Kenya as a whole.
It was his argument that Mr Odinga and Mr Musyoka have conducted themselves maliciously, without any regard for the rule of law and sanctity of judicial process.
Embattled elections boss Ezra Chiloba is to take a three-week break and will be away during Thursday’s repeat presidential election.
According to sources close to the Independent Electoral and Boundaries Commission, Mr Chiloba took a “personal decision to be away in order to build confidence in stakeholders” who had complained about commission officials.
The official has been under tremendous pressure from the National Super Alliance to resign, with flagbearer Raila Odinga calling for street protests to force him, as well as other key officials, out of office, accusing them of mismanaging the August 8 election in which President Uhuru Kenyatta was announced the winner.
The election was subsequently annulled by the Supreme Court which concluded it had not been conducted in accordance with the law.
Mr Chiloba takes leave days after a tough-talking chairman Wafula Chebukati demanded that officials mentioned “adversely’’ after the annulled presidential election step aside. The chairman said the election would not be credible with the officials in office.
The Supreme Court said it had found no evidence of wrongdoing by any of the officials but politicians have complained and accused the commission of rigging the election, bungling and stealing votes.
Last evening, sources said the decision to take leave had been discussed with the chairman and that Mr Chiloba believes that even in his absence the commission would conduct a credible election because sufficient preparations had been done to address the gaps identified by the Supreme Court.
Mr Chiloba’s decision to take leave came as it emerged that cracks within IEBC began showing when the chairman tabled before the plenary a demand by the National Super Alliance that some of the staff and a commissioner be asked to resign.
Mr Chebukati and Dr Roselyn Akombe wanted the staff and the commissioner named to leave, but those opposed said procedure must be followed. This was before the Supreme Court made its detailed judgment on September 1, where it did not point a finger at any individuals over the illegalities and irregularities in the bungled August 8 elections.
“Whereas some people wanted blood to be spilt, some of us wanted to follow the right procedures and processes. We argued that we have a working Human Resource department, and that there are procedures to be followed,” said Prof Abdi Guliye.
Nasa had demanded the sacking of Prof Guliye, who headed the sub-committee on research, strategy and ICT, chief executive Ezra Chiloba and ICT director James Muhati. Others were: voter registration and electoral operations director Immaculate Kassait, head of legal department Praxedes Tororey and head of operations Betty Nyabuto. The demand was made at public rallies before the Supreme Court’s full judgment.
“There was also the argument that since the decision by the Supreme Court came down to the legitimacy of the forms and the apparent refusal to open the servers, Dr Akombe, the commissioner who oversaw the operations as head of the sub-committee on election operations should also be held responsible.
“I don’t head operational things. I only deal with policy. Where do I come in?” Prof Guliye asked, a day after Mr Chebukati warned that the commission was sharply divided and was not in a position to deliver a fair, free and credible election.
His remarks were in agreement with those of Dr Akombe who resigned from the commission on Wednesday, citing difficult working conditions in a deeply divided commission, a partisan secretariat and political interference.
He agreed with Dr Akombe that it was not possible to deliver a credible election under the prevailing political situation.
Dr Akombe said Mr Chebukati had unsuccessfully sought to have the commission seek the Supreme Court’s interpretation on what Nasa flagbearer Raila Odinga’s withdrawal from the election meant.
On Thursday, however, commissioner Paul Kurgat suggested that Mr Chebukati’s statement and that of Dr Akombe, had not painted a true picture.
The voting at the commission has always been based on issues, he said. “It is not true that there is a permanent clique of four commissioners who vote against the chairman. Sometimes he loses his motions, sometimes he wins. Sometimes it is three commissioners for him or sometimes two. So, there is really no permanent four against three scenario here,” said Dr Kurgat, the former Kenyan ambassador to Russia.
Prof Guliye also denied the suggestion by Dr Akombe that decisions that were made by voting were bad. He pointed out that under the IEBC Act, decisions of the commissioners in the plenary were either by consensus or by voting.
“That’s why you have an odd number. A boardroom in a serious organisation like IEBC is not a place to party. You don’t go there for leisure talks. Decisions have to be made. In such a place, you have to ask hard questions. You have to evaluate everything before you make your decision.”
He said the suggestion that there was a faction that went to meetings with a made-up mind was from those whose ideas had been rejected.
“If you come with a pre-conceived mind and the decision doesn’t go your way, it doesn’t mean we hate you,” he said, adding: “It does not mean that because I didn’t vote for your motion I belong to someone else.”
Prof Guliye was categorical that voting at the commission did not start after the annulment of the presidential election. The decision to hire Safran/OT Morpho was made on a 4-3 vote, the creation of a project team was not disputed, the decision to have a cloud server was not shot down despite opposition by the ICT team, while the decision by Mr Chebukati and Dr Akombe to visit Nasa strongholds was not made by the commission. The commissioner said that despite the apparent divisions, the commission is striving to have the October 26 election go on as scheduled.
“Now, we’ll deliver an election and then see what happens thereafter. If we don’t hold an election, we’ll not have obeyed that court order. All the sideshows play to the gallery of us not obeying court orders,” said Prof Guliye.
There was also the argument that since the decision by the Supreme Court came down to the legitimacy of the forms and the apparent refusal to open the servers, the commissioner who oversaw the operations as head of the sub-committee on election operations should also be held responsible.
“The demand was double-speak in itself. It was malice,” said Prof Guliye.
It was after that disagreement that the memo from the chairman to Mr Chiloba was leaked to the media and then a few weeks later, the one on sacking the ICT director and staff. Some commissioners were convinced that the leakages were not accidental.
“We knew it was not a leak. It was a deliberate release and meant to paint us in bad light,” said Prof Guliye.
Additional reporting by Patrick Lang’at