Cherera Four: Masit sank on her own sword

President William Ruto (left) receives a report from tribunal chair Justice Aggrey Muchelule. The tribunal recommended that Masit be removed from her position. [PCS, Standard]

"Consequently, we make a finding that the Commission was visited by the two delegations and their mission was as stated by the witnesses. We make a further finding that the Commissioner agreed with the request by the delegation that they needed to interfere with the result by either declaring "Baba" as the winner or in the alternative, they are moderated to allow for a re-run," the tribunal said.

The tribunal found that Masit's acquiescence to the demands to moderate results or force a run-off were proven to the required standard and the Commissioner was, therefore, in breach of various constitutional provisions. "These actions were a clear, blatant and willful attempt at usurping the sovereign will of the people," the tribunal added.

On allegations of biased conduct in the presidential election, the tribunal observed that by agreeing to the requests, Masit subjected herself to the direction and control of the members of NSAC and the three other visitors. The tribunal affirmed that the Commissioner absconded duty by moving out of the gazetted national tallying centre at a time when the Presidential Returning Officer was about to declare the results.

Further, she proceeded together with others to make a parallel announcement at Serena Hotel declaring official results as "opaque". In doing so, the tribunal said she violated Section 6 of the Election Offences Act, which forbids electoral commission duty bearers from colluding with any political party or candidate for purposes of giving an undue advantage on partisan, ethnic, religious, gender or any other unlawful considerations.

"It is our finding that by rejecting the results that the Commissioner was part of, she called into question the credibility of the entire election without placing before the Country any information or document showing that the elections were either compromised or that the result would have in any way differed from that declared by the Chairperson of IEBC," the tribunal said.

Further, the Commission accepted wholly the uncontroverted evidence placed before it that showed that Masit was residing at the Yaya Towers between August 15 and 19th and that a number of senior officials from the Azimio La Umoja-One Kenya Coalition had access to and frequented the hotel during that time.

"One of them was Raphael Tuju who as captured earlier on, was part of a delegation that had gone to meet members of the IEBC in an effort to persuade them to moderate results in favour of Raila Odinga or in the alternative force a run-off. This is further evidence of partiality and undue influence on the part of the Commissioner," the tribunal found.

The tribunal observed that in the circumstances, the Commissioner breached the trust bestowed upon her by the people of Kenya and demeaned the office she was holding. The tribunal further indicted her on account of what was reported of her during the Commission-NSAC encounter at Bomas.

"A debate ensued when Commissioners Francis Wanderi and Irene Masit suggested that in light of the NSAC delegation's communication, the results be changed to force a re-run which in their view would be a 'win-win' situation," the tribunal heard.

Suspended IEBC Commissioners Juliana Cherera, Francis Wanderi, Justus Nyang'aya and Irene Masit address the press at Serena Hotel, Nairobi, in August 2022. [Edward Kiplimo, Standard]

When Prof Abdi Guliye, a Commissioner enquired how that would be done, Commissioner Juliana Cherera stated that the margin was not too big and could be manipulated by moving the 233,211 votes from William Ruto to the rejected ballots category.

The tribunal said this evidence demonstrated that Masit did not respect, uphold and defend the constitution and countenanced an attempt to establish a government outside the law. The tribunal further hammered her on the second ground of gross misconduct, all relating to the same happenings of Bomas.

On this, the tribunal particularly took issue with her disowning of the result that she had participated in tallying and verifying. They said she intended to undermine and erode public trust in the commission and the result, and therefore gross misconduct.

"The actions by Commissioner Irene Masit clearly show that she was amenable to improper influence and that she could not be trusted to be an impartial and neutral arbiter. Once again, she was guilty of gross misconduct," the tribunal ruled.

The only saving grace for Masit was the third ground of incompetence which the tribunal rejected, albeit too late. According to the tribunal, evidence placed before it demonstrated that Masit had demonstrated competence all through the electoral cycle, except for the events of August 15. They noted avowals on her competence by IEBC chair Wafula Chebukati.

The tribunal said a single incident of dereliction of duty cannot amount to incompetence.

"In the circumstances, we decline to find and hold that the actions of the Commissioner amounted to her lack of ability, knowledge, legal qualification, or fitness to discharge the required duty or professional obligation' as a Commissioner," the tribunal said.