Richard Zachaeus Chesoni, 56, was appointed a High Court judge in 1974 and in February 1983 was made an acting judge in the Court of Appeal. At about this time he borrowed money from the Kenya Commercial Bank, then wholly owned by the Kenya government, to set up import businesses, called Tawai Ltd and Chesa Investments. He imported tea chests, fertiliser and cosmetics but his businesses failed.
In a case heard on 30 July 1984, he was sued for nearly 21m Kenya shillings ( pounds 370.000) which he had borrowed from the Kenya Commercial Bank. The bank won but shortly afterwards wrote a letter to Mr Chesoni telling him that it had been instructed not to proceed with a personal bankruptcy case against him. He was, however, forced to resign from the bench. 'I understand there was some kind of arrangement. He undertook to pay certain sums,' said Mr Justice Telford Georges, chairman of the Commonwealth election observers group.
In 1989 Mr Chesoni wrote to the Chief Justice saying his finances were in order again and he was reappointed as a judge early in 1990. But shortly afterwards there was a summons to have him committed to prison for failing to comply with the arrangements for paying his debts, which now amounted to 30m Kenya shillings. He was summoned before a Judicial Service Commission, headed by the Chief Justice, and his explanation was found inadequate. He was sacked.
Less than a year later President Moi appointed him Chairman of the Electoral Commission.
The opposition parties complained about the appointment. As chairman, Mr Chesoni had responsibility for decisions on constituency boundaries, the registration of voters, the appointment of electoral officers and, later, the registration of candidates. In July last year the opposition leaders filed a suit declaring Mr Chesoni to be unfit and unqualified to hold office, citing his debts, his bias towards the ruling party and his having been disqualified from being a judge.
The lawyer who brought the case, Kiraitu Murungi, said he sent his clerk five time to the registry of the court to ask for the relevant files but was told they were not available or could not be traced. Mr Chesoni denied the allegations. The case was dismissed for technical reasons.
Paul Muite, secretary of the Forum for the Restoration of Democracy (Ford), then issued a statement asking whether or not the government had ordered the bank to write off Mr Chesoni's 30m shilling debt. He received no answer. He wrote in Society Magazine last July that Mr Chesoni was unsuitable to preside over such an important constitutional body. 'Kenyans are familiar with the well-known government tactic of writing off loans owed by those it seeks favours from. Could Justice Chesoni assure us that this has not happened in this case?' he wrote. Mr Chesoni did not reply.
Legal sources confirmed to the Independent that the government had written off the debt for Mr Chesoni by ordering the state- owned bank to cancel it.
As chairman of the Electoral Commission Mr Chesoni was at first inaccessible to opposition leaders, according to the Commonwealth observers' report, and failed to respond to complaints about the conduct of the electoral process, including the compilation of the electoral register. The situation was so serious that the Commonwealth Secretary-General, Chief Emeka Anyaoku, visited Kenya to warn President Moi that, unless Mr Chesoni and the commission acted independently, the credibility of the election would be in doubt. The government, however, insisted on keeping Mr Chesoni on, 'which made it difficult for the oppositon to have any faith in him,' said Mr Justice Georges.
The Commonwealth decided to live with the appointment, saying Mr Chesoni's performance had improved. It concluded that the elections had serious imperfections but broadly represented the will of the Kenyan people. As he left Kenya on 2 January, Mr Justice Georges said the Electoral Commission had made every effort to act impartially.
Mr Muite said he told the British High Commission and other embassies about Mr Chesoni's record and invited them to investigate it further, but he said they were unhelpful. A British High Commission spokesman said they had been aware of reports in the press about Mr Chesoni but had no further evidence.