IEBC bosses yesterday dug in their heels and signalled a signaled a protracted legal battle over attempts to kick them out.
They and rubbished the mandate of the House electoral reforms committee as illegal.
The new development, an apparent U-turn by the commission, came as a shocker since religious leaders earlier reported IEBC bosses were ready to quit should there be a Jubilee-Cord deal.
It was not clear, however, whether the commissioners would move to court to challenge the constitutionality of the committee, established after weeks of bloody street protests and Jubilee-Cord confrontation.
In a 17-page response to the committee, IEBC chiefs led by Issak Hassan said Parliament has no power to sack any of its staff, including CEO Ezra Chiloba.
The Select Committee on the IEBC yesterday rejected a preliminary objection by the electoral body, challenging the legality of the proceedings.
Commissioners argued the ongoing process, which they said seeks their removal, was illegal and unconstitutional. They accused the 14-member committee of collecting allegations to send them home.
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They compared the committee to a fishing trawler and said its investigations amount to illegal double jeopardy since the IEBC has been probed and audited by seven agencies. Thie reports are in the public domain, it said.
“A petition is the only mechanism to remove IEBC commissioners from office,” Hassan said in the morning. He presented objections that forced the committee to adjourn for four hours to consult on "weighty issues".
Resuming at 3pm,the committee rebuked the IEBC. It said its terms of reference are not limited to removal of commissioners but cover how to establish a legal, policy and institutional framework guaranteeing free, fair and credible elections next year.
The commission said, however, it will not make submissions about allegations against them because independent investigating agencies already have dealt with various claims.
However, the committee said it must look into all allegations because many Kenyans expressed concerns about the credibility, integrity and independence of the commission.
“In accordance with the rules of natural justice, the commission can choose to respond to all the allegations, some of the allegation or opt not to respond,” the committee said.
“The commission can also make a representation on all the thematic areas, some or none,”it said.
Committee co-chair Senator Kiraitu Murungi reminded the commission to be sensitive to feelings of the people, saying "the country is bigger than any single individual."
In an apparent contradiction, however, the nine commissioners said they were ready to conduct the 2017 polls, though four of them had agreed to voluntarily hang up their boots.
According to the commissioners, they can only be fired through a petition to the National Assembly. They compared the committee to a “trawler sent to the high seas to try and fish out allegations against the commission”.
“It cannot be right that merely because the process [of submitting petition] may be long or because there is not sufficient evidence to support a petition or just because some individuals do not like the office holders, then as a country we short-circuit the constitutional process,” IEBC protested.
“A committee of this stature, chaired by, and having within its ranks eminent jurists should not find it difficult to determine that these proceedings fall afoul of the Constitution." it said.
The Joint Select Committee on electoral reforms is chaired by Senior Counsel James Orengo (Siaya Senator) and his Meru Counterpart Senator Murungi.
On June 20, commissioners Yusuf Nzibo, Albert Bwire, Kule Galma Godana and Abdullahi Sharawe wrote to President Uhuru Kenyatta declaring their readiness to quit.
“For the sake of our country, a sign of nationalistic gesture, for purposes of investment in Kenya for the present and future generations, in the interest of peace and harmony and in good faith, we wish to express our willingness to voluntarily retire from public service, in order to accord new commissioners adequate time to settle and prepare for elections,” the four said in a joint letter.
But in their written submissions to the committee, commissioners protested they have been “audited and re-audited”.
the EACC has investigated “every single procurement or process undertaken by the commission”, while the DPP is prosecuting some staff, it said.
“All these audits ... are available for scrutiny...It is now unfair and unjust and contrary to the rule against double jeopardy for Parliament to engage in fishing excursions in a bid to find grounds to initiate proceedings for removal of commissioners and the secretariat,” they said.
Hassan was cleared by EACC two weeks ago over the Sh50 million ChickenGate bribery scandal, but the DPP is yet to clear him.
In their written submissions, the Commissioners maintained only they can discipline secretariat staff.
“No other authority has been vested with such power by the Constitution, including Parliament itself,” they said.
Part committee's mandate is to inquire into allegations against IEBC commissioners and the secretariat. It then may recommend removal of commissioners, if necessary.
Yesterday, commissioners also opposed proposals to hire part-time commissioners, saying the policy and operation of the commission fall on their shoulders.
The team also vehemently opposed proposals for fresh voter registration. The law provides voter listing be conducted no less than eight years apart and no more than 12 years.
That would require huge capital investment and time, which the commission may not have before the next polls, they said.
Cord is pushing for new voter registration, saying the IEBC register is flawed and citing the IEBC's own admission of problems, including not knowing the total number of voters.
The commission says it has learnt lessons and improved operations, systems and technology to deliver credible polls.
“The commission said it is upgrading data center facilities, servers and network infrastructure. A business continuity plan is being developed and ICT security policy has been developed to improve availability, reliability and security of electoral systems," they said.