Matungu by-election: ODM's David Were challenges poll result

The rivalry between two opposition political parties, Amani National Congress (ANC) and the Orange Democratic Movement (ODM), is set to play out in court after the latter's candidate filed a petition challenging results of the March 4 Matungu parliamentary by-election.

In the petition, ODM candidate and former Matungu MP David Were claims that ANC agents, together with Independent Electoral and Boundaries Commission (IEBC) officials, committed various malpractices which disadvantaged him and aided the victory of ANC's candidate Peter Oscar Nabulindo.

Through Marende & Nyaundi Associates, a law firm owned by former National Assembly Speaker Kenneth Marende, Mr Were alleges that IEBC was not impartial since his agents were not allowed to participate in or witness the opening of ballot boxes or the voting process, as well as the sealing of the boxes and in other areas, the counting of votes.

He also says that his agents were ejected from the tallying centre and that during vote counting, a number of Form 35 A documents were not signed by ODM party agents and that no explanation was rendered for the same.

While arguing that IEBC did not conduct a free and fair election and Mr Nabulindo did not win legitimately, Mr Were claims that in some polling stations, accredited agents of majority of the candidates were denied entry during the voting exercise while others were entirely excluded.

"Some of the petitioner’s agents were not allowed into the polling station and tallying room at the time of poll opening and were only admitted in the afternoon and for that reason they did not witness a substantial part of the polling and tallying in total," reads the 13-page petition filed at the Kakamega High Court.

Mr Were intends to prove his claims using at least six witnesses who have also recorded affidavits. 

'Violence, intimidation' 

The court documents say the by-election was characterised by excessive violence and intimidation of Mr Were's agents and IEBC officials. For instance, Mr Were alleges, his agents were abducted, forcibly confronted and locked up in classrooms.

He also explains that the violence experienced by his agents and supporters include abduction, beating and injuring, stabbing, shooting, chasing or pursuing of his supporters, officials and agents into their homes and violently attacking them on election day.

Another form of intimidation experienced, he says, is the lashing or thumbing of IEBC officials in charge of polling, threats to lives of his agents, officials and ODM supporters in and outside of polling stations on voting day.

"IEBC officials, petitioner’s agents and party officials were shot at, stabbed, beaten, and or flogged. For instance, Senator Cleophas Malala intimidated and physically assaulted voters and presiding officers at Munami, Mayoni, Mwira, Emakale, Namayiakalo and Emanani polling stations, to mention but a few," the petition indicates. 

Mr Were further cites an incident at Munami Primary School, where he says Senator Malala, together with Mr Stanley Livondo, led a gang of youth who invaded the polling centre, assaulted and dragged a female IEBC official out of the polling centre.

He narrates that they threw open the ballot boxes and scattered polling materials all over the school field leading to intimidation of voters who, fearing for their safety, ran away without casting their ballots. 

At the said Munami polling station, voting materials were destroyed, disorganised and dispersed by agents of the ANC candidate, reads the petition. 

Mr Were accuses IEBC and the constituency returning officer of abdicating their role and duty 'to exercise, protect and safeguard the sovereign will of the people of Matungu'.

"The by-election was so badly conducted, immensely marred with excessive violence and irregularities that it does not matter who won or was declared as the winner. The petitioner invites the court to rescue the Kenya democratic space by pronouncing herself loudly that an election shall not be won by use of deception, coercion and violence," he states.

Mr Were reckons that had IEBC and its returning officer acted within their constitutional and statutory mandate, they would have declared the Matungu by-election a nullity ab initio (from the beginning) for reasons of 'unprecedented, unashamed, excessive and massive violence openly effected upon the officers of the IEBC and voters generally by agents and supporters of Nabulindo'.

He urges court to declare that results, which indicated that Mr Nabulindo was the winner after garnering 14,257 votes, were invalid, null and void.

The court is expected to hear and determine the case within six months.