The electoral commission was on Monday crippled after three commissioners resigned, leaving it incapable of conducting any business.
Ms Connie Nkatha (vice-chairperson), Dr Paul Kurgat and Ms Margaret Mwachanya announced their resignations in Nairobi, in a joint move that left the Wafula Chebukati-led Independent Electoral and Boundaries Commission (IEBC) virtually dissolved.
The resignations - after another commissioner Dr Roselyne Akombe quit 10 days to the October 26 repeat presidential election last year--mean the IEBC has only three commissioners, chairman Chebukati, Prof Abdi Guliye, and Mr Boya Molu.
According to Senior Counsels Paul Muite, Nzamba Kitonga, and James Orengo and other lawyers interviewed by the Nation, the commission is no longer tenable with only three out of the maximum seven commissioners working.
"This commission is cursed," said Mr Orengo, the Senate Minority Leader. "The resignations at the IEBC are a symptom of an incurable cancerous disease that bedevils it. Without a doubt the resignations undermine the legitimacy of the Jubilee administration and confirm that last year's elections were an electoral fraud."
Mr Muite warned that the IEBC could not continue transacting business because of lack of quorum.
The IEBC Act states that the quorum for the commission to conduct business is five commissioners and an amendment to the law last year to reduce it to three was last week quashed by the High Court for being unconstitutional.
Mr Kitonga, who chaired the Committee of Experts that drafted the 2010 Constitution, said: "The remaining three commissioners cannot continue to conduct any business. They do not have a quorum. They have two viable options: To resign now and let a new team be appointed or that the vacant positions are filled."
But Mr Chebukati appeared unmoved saying: "The commission assures the public that its operations are on course and we remain focused on delivering our constitutional mandate. As the chairman, I am committed to the course of transforming the country's electoral management body to make it more responsive and professional."
He asked Parliament to draft laws to enable the replacement of the four commissioners and insisted that they had resigned because of the plenary resolution to hold Mr Chiloba to account, saying they had the option of demanding a review of the decision.
"Their action demonstrates lack of capacity to lead in difficult times and accommodate divergent views," said Mr Chebukati in three-page statement last night.
The latest development was not entirely surprising, coming after a series of the commissioners' clashes with Mr Chebukati, especially after the historic September 1 Supreme Court decision that annulled the presidential election--the first in Africa and only the fourth in the world.
After the case, Mr Chebukati, on the one hand, retreated to a corner backed by Dr Akombe, the vocal commissioner who later resigned, while on the other hand, Ms Nkatha led five silent but extremely powerful group of commissioners that frustrated the chairman's plans by shooting down his directives at the voting stage.
Frustrated, Mr Chebukati threatened to quit a day after Dr Akombe resigned, saying: "I have made several attempts to make crucial changes but all my motions have been defeated by a majority of the commissioners."
That same month, Ms Nkatha had led five commissioners including Mr Molu and Prof Guliye, now in the Chebukati camp, to disown a memo from the chairman to Mr Ezra Chiloba the chief executive, saying the 56-year-old lawyer had not consulted them.
But it is the suspension of Mr Chiloba -- who has been at the centre of the Nkatha-Chebukati camp wars -- 10 days ago which was the last straw that broke the camel's back.
The decision was made by Mr Chebukati, Prof Guliye, and Mr Molu, after Ms Nkatha and Dr Kurgat walked out of the meeting to protest what they described as an arbitrary move.
"Given this severe deterioration of confidence in the commission chair, we find our position as commissioners under his leadership no longer tenable," the three commissioners said in a joint statement. "Consequently, we regret to announce our resignation from the commission with immediate effect."
"The commission boardroom has become a venue for peddling misinformation, grounds for brewing mistrust and a space for scrambling for and chasing individual glory and credit," they said in a joint statement. The Nkatha trio said the commission was dysfunctional and in the grip of "arbitrary decision-making and leakage of internal documents."
They had rubbished Dr Akombe's claims of a dysfunctional commission after the opposition and the civil society had demanded that the October 26 poll be postponed. Monday however, Ms Nkatha said: "I want to ensure Kenyans that on elections, we did well. We had a wonderful, wonderful election--two elections in under a year."
Mr Orengo called for reconstitution of the commission, saying there should be discussions to "allow major political parties to nominate members to the commission and for Kenyans to reopen debate about electoral justice including the structure of the executive."
Senate majority leader Kipchumba Murkomen asked the remaining commissioners to quit too.
"If they do not resign in seven days, we will then bring proceedings to ask Parliament to form a tribunal to investigate them. If they are found guilty, they must go home. That is unless they do the honourable thing now and save the country this whole charade," he said.