Ex-governors can vie for Parliament, rules court

John Mativo

Justice John Mativo at the High Court in Mombasa.

Photo credit: File

The High Court has dismissed a petition seeking to bar current and former governors from vying for Senate and National Assembly seats.

Justice John Mativo on Friday ruled that the petition filed by Ms Carolyne Chilango and Coast Legal Aid Resource Foundation (Clarf) was speculative as it stood on assumptions and was not precise.

Ms Chilango and Clarf had argued that if current and former governors were allowed to become Members of Parliament, it would violate the Public Officer Ethics Act and national values and principles. They said it would also allow them to cover up their wrongful deeds while in office.

Justice Mativo, however, said that courts only rely on evidence rather than mere speculation.

The judge added that the petition was filed pre-maturely and there was no real and imminent threat of rights to warrant court intervention.

He said even after candidates presented their nominations to the Independent Electoral and Boundaries Commission (IEBC) no amendments were sought to name particular individuals.

Exhaustion of remedies

“The petitioners were too impatient to wait for the process to take shape and to only approach IEBC after it had cleared the candidates,” Justice Mativo said.

He added that, at that point, the petitioners would have been certain on which candidates to object to and that the law would have been on their side as it provides a mechanism for settling such disputes.

“Their impatience and disregard of the provisions [of IEBC to settle electoral disputes] means that the suit offends the doctrine of exhaustion of remedies, which enjoys recognition under Article 152 (2) (d) [and] requires courts to embrace alternative dispute resolution mechanisms,” Justice Mativo said.

Ms Chilango and Clarf argued that the integrity of the National Assembly and the Senate will be eroded should former governors become members who oversee how public funds are used.

They further argued that IEBC ought to uphold and defend the constitution by barring governors from seeking refuge in Parliament with the aim of using their positions as a cover-up when inquiries into their deeds while in office are questioned.

“All persons who have been governors should be allowed to retire upon completion of their terms [rather than being] elected [as MPs],” Ms Chilango said.

IEBC, Council of Governors (CoG) and the Attorney-General responded that qualifications for members of Parliament do not preclude sitting and former governors from vying unless barred by other regulations.

They argued that petitioners’ oversight fears were speculative and that individual rights could not be curtailed by speculation.

The CoG also argued that the court lacked jurisdiction to hear the case because of the IEBC Act, which gives the commission powers to deal with the issues raised in the petition.


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