Cracks at IEBC Widen as Three Commissioners Choose Own Lawyers

Saturday, August 27, 2022

From left; IEBC commissioners Justus Nyang'aya, Francis Wanderi Vice chairperson Juliana Cherera, and Irene Masit address the media on August 16, 2022, at the Serena Hotel.

Jeff Angote | Nation Media Group

By Walter Menya

What you need to know:

IEBC is appointing 26 law firms that will represent the commission and its chairperson Wafula Chebukati.

Putting an approximate figure of Sh20 million per law firm, the taxpayer could pay up to Sh520 million for the 26 law firms.

The figure could be higher if the commission also foots the bill for lawyers representing the other six commissioners. 

The rift among commissioners of the Independent Electoral and Boundaries Commission (IEBC) widened even further yesterday after the two sides appointed separate sets of lawyers to represent them in the petitions challenging the outcome of the August 9 presidential election.

IEBC CEO Hussein Marjan notified the Supreme Court that it was appointing 26 law firms that will represent the commission and its chairperson Wafula Chebukati, a decision that could see the taxpayer cough up hundreds of millions of shillings to pay their legal bills. 

But the appointments, communicated by Mr Marjan, were silent on the representation of the other six commissioners including Prof Abdi Guliye and Boya Molu, who are also listed as respondents in the petitions challenging the outcome of the August 9 presidential election.

In fact, some of the commissioners appeared to be unaware of Mr Marjan’s communication to the Supreme Court about the appointment of advocates.

“Have they filed?” Commissioner Francis Wanderi reacted yesterday when the Saturday Nation reached out to him.

Vice-chairperson Juliana Cherera, and commissioners Francis Wanderi, Justus Nyang’aya and Irene Masit had disowned the results announced by Mr Chebukati. 

Individual lawyers

The Saturday Nation then learnt that at least three of the four dissenting commissioners had appointed their individual lawyers.

Ms Cherera has appointed Apollo Mboya, Mr Nyang’aya opted for Rachier & Amollo Advocates while Mr Wanderi has appointed J.M. Njenga Advocates.

Ms Masit’s representation was still not clear by the time of going to press as parties had not been served by a notice of appointment of lawyers. 

Sources at IEBC told the Saturday Nation that the lawyers appointed by the three commissioners were not in the panel of IEBC pre-qualified lawyers, putting into question whether the commission will foot the bills. However, Mr Wanderi said that the commission should pay the legal fees. 

“They should because we are staff of the commission and whatever we did was on behalf of the commission,” he said.

The status of representation of Commissioners Guliye and Molu was also not clear and neither responded to our calls.

In the petitions, all the commissioners have been listed as respondents, potentially setting those who supported the declaration of the result against the four who disowned the outcome. 

Mr Marjan also did not answer our calls and text messages that sought clarification on the matter.

By the deadline of Monday for challenging the results of the presidential election, eight petitions had been filed.

The appointment of 26 law firms to represent IEBC and its chairman could be the largest by the commission since 2013 when the first presidential election petition was filed at the Supreme Court under the 2010 Constitution.

Costly petitions

The 2013 petition cost IEBC Sh385 million for 14 law firms.

One of the lawyers who represented IEBC in 2013, Ahmednassir Abdullahi, billed the commission Sh40 million while Aurelio Rebelo who was the top lawyer for the commission was paid Sh30 million. 

The commission has spent Sh2.6 billion in legal fees in the last four years, according to the national government budget implementation review reports from 2018 to 2021, with Sh859.3 million in the financial year 2017/2018 which coincides with the August 2017 election when the presidential election outcome was twice challenged.

Putting an approximate figure of Sh20 million per law firm, the taxpayer could pay up to Sh520 million for the 26 law firms that will be representing IEBC and its chair in the presidential election petition.

The figure could be higher if the commission also foots the bill for lawyers representing the other six commissioners. 

The figure can only be expected to go up this year, more so driven by the number of law firms that will be billing the commission at the conclusion of the presidential election petitions currently pending before the Supreme Court.

Of the 26 law firms contracted by the commission, 22 will be representing IEBC which is the first respondent while four will act for Mr Chebukati who is a respondent by virtue of being the returning officer for the presidential election.

Not only will the lawyers be defending the conduct of elections but also that of Mr Chebukati who faces a barrage of accusations, some criminal in nature.