What is the fate of the four IEBC commissioners if they all resign?
Through their resignation letters to the president, IEBC Commissioner Justus Nyang’aya took the lead by resigning last Friday followed by the vice chair Juliana Cherera who resigned today, throwing the pending investigation by the tribunal in limbo.
According to the law, if a civic servant resigns with a pending case, it automatically dies.
If all the four IEBC commissioners resign, it means they will not appear before the tribunal since there will be no case to discuss. The process of their removal from office should end. The investigation process aims to recommend one’s suitability to hold office and once they resign it becomes insignificant.
Resignation is a guaranteed constitutional right and the two commissioners acted within their rights.
There is a difference between a pending case and resignation though. If you resign while having a continuing case, you face it. Investigations by the police don’t stop just because someone has resigned.
Being a constitutional office holder, Cherera enjoys the constitutional protection whereby only a tribunal can order her removal. Other State officers who serve under the mercies of the appointing authority like the president do not enjoy such protection.
The tribunal could not have initiated criminal proceedings on the IEBC commissioners since they don’t have such powers. There are specific agencies to deal with that.
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 the removal from office because this is not a criminal empowered tribunal.
If they could be found unfit from holding office, they would have been removed but the law gives them the right to challenge the tribunal findings.
It’s not over for the IEBC commissioners who resigned though, since any Kenyan can file a criminal case against them. However, the citizen have to point a specific crime committed otherwise the case cannot be sustained since the commissioner is protected by law.Chances of such a case going through is next to impossible though.
Now the big question is,will commissioners Francis Wanderi and Irene Masit also resign?