AG and Parliamentary Service Commission sued over Banissa by-election

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Attorney General Justin Muturi and the Parliamentary Service Commission have been dragged to court over the postponement of the Banissa Constituency by-election in Mandera County.

The petitioner, Mr Adan Mohamed Abdullahi alias Adan Kiongozi, said he was acting in the public interest of Banissa voters.

The seat fell vacant following the death of MP Kullow Maalim Hassan, who succumbed to injuries sustained after he was knocked down by a motorcyclist in Nairobi.

The MP died on March 29 and on April 18, the Speaker of the National Assembly declared the seat of the MP for Banissa Constituency vacant with effect from March 29.

Mr Abdullahi, through Ongoya and Wambola Advocates, argued that by law, whenever a vacancy occurs in the office of a member of the

National Assembly, the Speaker must, within 21 days of the vacancy, notify the Independent Electoral and Boundaries Commission (IEBC) in writing of the vacancy and a by-election must be held within 90 days.

He said the failure of the selection panel for nominees to be appointed as IEBC commissioners to carry out its mandate will lead to a constitutional crisis and the people will suffer for lack of political representation.

"By operation of the foregoing constitutional provisions, a by-election must be held in Banissa Constituency of Mandera County not later than June 26, being 90 days from the date of the occurrence of the vacancy in the seat of the member of National Assembly thereof," he stated in his petition.

The commission to select candidates for appointment as IEBC commissioners, also listed as a respondent, was formed, but its work has stalled following a political stalemate between the government and the opposition.

The IEBC, another respondent, is not fully constituted because it lacks commissioners to plan and supervise the by-election.

According to the petitioner, the failure of the IEBC's selection committee to expedite the process of shortlisting and interviewing candidates for the positions of members and chairperson, and its effect on the delay in holding a by-election in Banissa Constituency, threatens to violate the express provision of Article 101 (4) of the Constitution.

Mr Abdullahi asked the court to declare that a by-election must be held in Banissa constituency by 29 June.

He also asked the court to declare that the failure of the IEBC's selection committee to recruit candidates for the appointment of the IEBC chairperson and members threatens to contravene the express provisions of Article 101(4) of the Constitution of Kenya, 2010.

He is also seeking a declaration that the decision by the selection panel, together with the Parliamentary Service Commission, to delay the long- and short-listing of nominees for IEBC commissioner will delay the elections in Banissa and Kisa East ward and that this is a threat to the relevant parts of the Constitution that provide for timelines for filling vacancies.

He said the same will delay the delimitation of constituency and ward boundaries.

The panel was tasked with the responsibility of nominating individuals for the positions of IEBC chairperson and commissioners, but several roadblocks have since arisen that have stalled the process.

On April 4, Busia Senator Okiya Omtatah went to court seeking an order to stop the recruitment of the chairperson and six members of the IEBC.

Opposition leader Raila Odinga also called for the recruitment process to be halted and for all political parties to be included in the process, despite a law setting out the selection mechanism.

Vacancies at the IEBC arose after former chairman Wafula Chebukati and commissioners Boya Molu and Abdi Guliye retired in February.

Commissioners Juliana Cherera, Justus Ngang'aya and Francis Wanderi resigned at the end of last year, while President William Ruto sacked Commissioner Irene Masit.

According to the petitioner, the IEBC was supposed to have notified the Banissa Constituency returning officer of the by-election plan by May 7, but this never happened.

"The above processes expected of the commission have not commenced due to the vacancy of the positions of chairman and commissioners at the IEBC," he said.

He added: “That notwithstanding the foregoing circumstances and in the face of an imminent threat of a breach of Article 101(4) of the Constitution, there has been no movement to expedite the recruitment of IEBC commissioners to ensure that the by-election in Banissa

Constituency of Mandera is held within the period prescribed by the Constitution".

The IEBC is also expected to conduct a by-election for the Kisa East ward in Kakamega County.

"I am doing this as a patriotic citizen. I don't want anybody to go to court over something that could have been avoided if these commissioners were in office," Mr Abdullahi said.

All the respondents listed are yet to file their replies.