Why petitioners want Harrison Kombe reinstated as Magarini MP

A voter in Magarini and two non-governmental organisations want an order issued to preserve the tenure of area MP Harrison Kombe, whose election was nullified by the Supreme Court. 

In their application to the High Court, Jackline Kabibi, Tribeless Youth and Siasa Place want the order made until the Independent Electoral and Boundaries Commission (IEBC) is reconstituted to declare the seat vacant and conduct a by-election.

The applicants want the Attorney General and the Speaker of the National Assembly to be restrained from declaring the seat vacant unless the IEBC has the minimum number of commissioners to conduct the election.

They want the orders issued pending the hearing and determination of their petition, which they say is about the IEBC not having the minimum number of commissioners to conduct the by-election or to review the boundaries in accordance with the constitutional timelines.

"The petition is also informed by the Supreme Court order directing the IEBC to declare the Magarini Constituency vacant and conduct by-elections," reads part of the court papers.

The Supreme Court had upheld the nullification of Mr Kombe's election.

Mr Kombe's election had been annulled by the High Court on the grounds that irregularities had affected the final result, a decision that was upheld by the Court of Appeal before being appealed to the Supreme Court.

The IEBC and the Kenya National Commission on Human Rights (KNCHR) were named as interested parties in the case.

According to the petitioners, without commissioners, the IEBC cannot plan for either of these issues, so the unconstitutional state of affairs violates the Constitution.

The petitioners further argue that if the IEBC declares the Magarini MP seat vacant without commissioners to conduct the by-election, it could remain vacant indefinitely and the electorate, as well as the residents of Banisa constituency, would remain unrepresented in the National Assembly.

The petitioners want a declaration that without a minimum of three commissioners in office, the IEBC lacks the quorum to receive or act on the notice of vacancy under Article 104 of the Constitution to conduct the by-election within 90 days or to delimit boundaries.

They are also seeking a declaration that the IEBC's failure to reconstitute itself for over a year has violated voters' constitutional rights and their right to recall their representatives.

Ms Kabibi, Tribeless Youth and Siasa Place argue that Article 89 of the Constitution requires the IEBC to review the names and boundaries of constituencies at intervals of not less than eight years and not more than 12 years.

They also argue that the respondents disregarded the KNCHR's advice in February that the constitutional deadline for the review would expire in March, yet the country did not have a fully constituted IEBC mandated to undertake the exercise, creating an impending constitutional crisis.

The petitioners also argue that the IEBC's status cannot guarantee the electorate of Magarini a free and fair election conducted by an independent commission and that it (IEBC) cannot lawfully implement the High Court order without the minimum number of commissioners in office.

"The less than quorate IEBC cannot receive or act on the Speaker's notification within 21 days of the vacancy as required by the Constitution, nor can it hold a by-election within 90 days," the petitioners argue.

The petitioners argue that the delayed delimitation of constituencies violates political rights under the Constitution.

They also argue that the delay violates political and fair representation and, if not carried out in accordance with due process, may result in the marginalisation and disenfranchisement of certain groups.

They also argue that the delayed boundary delimitation also distorts the principles of devolved government under the Constitution.

"Since the population index is one of the key parameters in the revenue sharing framework under the Constitution, the delayed delimitation of boundaries violates Article 201 on equitable sharing of nationally generated revenue," the petition states.

The petitioners also want a declaration that the KNHCR's advice and recommendations on matters within its mandate are binding under the Constitution.

They also want an order of structural injunction directing the respondents to immediately reconstitute the IEBC and to report to the court within 45 days of the court's order on the steps they have taken to comply with it.

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