Suspended electoral commissioner Irene Masit is mulling an appeal to the tribunal decision that recommended her sack following a two-month probe on her conduct.
Masit does not believe the decision reached by the tribunal chaired by Justice Aggrey Muchelule and handed over to President William Ruto on Monday was fair and just.
In the report, the tribunal indicted Masit on two grounds of serious violation of the constitution and the law as well gross misconduct. The tribunal rejected the third ground of incompetence.
Sources told the Standard that Masit’s appeal will be grounded on eight of the nine salient issues singled out by her counsel Donald Kipkorir in the course of the tribunal proceedings.
https://www.youtube.com/watch?v=Ff8opX4i_5I
On the first issue, Masit believes the tribunal misdirected itself to revisit a matter which had conclusively been handled by the Supreme Court which had the exclusive and original jurisdiction to do so.
Masit, through Kipkorir told the tribunal as much in her written submissions. She said the tribunal was reopening matters already decided in the presidential petition filed by Azimio leader Raila Odinga and consolidated with several others.
The second issue relates to substance of the evidence on the basis of which she was indicted by the tribunal. The evidence entailed witness accounts of the events at Bomas National Tallying Centre, Serena Hotel and yaya Hotel.
During the tribunal hearings, Masit did not adduce evidence to controvert the claims by the witnesses adduced by the lead counsel for the tribunal. She believed, and still believes the evidence was hearsay and lacked probative value.
No evidence was adduced to corroborate the evidence adduced by the very side she walked away from on the material date of August 15, 2022.
Tied to this is the third issue of the form of the evidence deployed against her. She argued that the electronic evidence tendered was without a certificate as per the law and should have been disregarded.
This includes the video recordings of her arrival at Yaya and the recordings of the press conference at Serena, both of which were used to nail her. Of Yaya, the tribunal found that the evidence availed established that she was politically biased and of Serena, it said she skived duty.
During the cross-examination of witnesses, Masit said the CCTV footage had been obtained illegally and should not have been admitted in the first place.
Masit also believes that the standard of proof adopted by the tribunal was wrong. She told the tribunal that the matter of impeachment of a commissioner is a criminal proceeding whose standard of proof is that of beyond reasonable doubt.
The tribunal had however adopted a standard of proof which was a middle ground of reasonable doubt of criminal proceedings and balance of probabilities of civil proceedings. The standard used was higher than balance of probabilities of civil cases but not beyond reasonable doubt of criminal ones.
She believes the lowering of the standard adversely affected her rights, making her an easy catch.
On the fifth issue, Masit said the tribunal members were inherently biased against her on account of the active membership or association with the ruling party, United Democratic Alliance (UDA). The sixth issue relates to credibility of some of the witnesses, like chairman Wafula Chebukati and IEBC CEO Marjan Hussein Marjan.
Masit believes the pair were tainted witnesses on the basis of past determinations, including the Supreme Court presidential petition decision, that they were running commission affairs in exclusion of other commissioners.
The last two issues relate to the understanding of the terms serious violations of the constitution and gross misconduct. She already won on the incompetence claim, with the tribunal noting that she had demonstrated a streak of competence in the run up to the election.
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