Mandera court nullifies nomination of UDM county assembly member
A nominated Member of County Assembly (MCA) from Mandera has lost his seat after a court nullified his nomination.
Mandera Senior Resident Magistrate Peter Wasike in a virtual ruling nullified the nomination of Mr Abdow Bishar Maalim and declared Ms Suban Ahmed Abdinoor as the duly nominated MCA by United Democratic Movement (UDM) Party.
“As I found out, the nomination of the 3rd respondent (Mr Maalim) was not in compliance with the Constitution, the relevant election and nominations laws and regulations and the party constitution,” Mr Wasike observed.
He added: “I hereby direct the IEBC to issue forthwith and publish a gazette notice electing Ms Suban Ahmed Abdinoor to the County Assembly of Mandera to represent Persons Living With Disabilities (PWD) under the marginalized category”.
It emerged that Mr Maalim forged his registration as a UDM member after the general elections held on August 9, 2022.
The court heard that on August 15, 2022, the UDM Secretary General, David Ohito was informed by the Registrar of Political Parties that the party list submitted, approved and published by the IEBC had been altered to include the name of Mr Maalim without authorization of the leadership of the party.
Ms Suban Ahmed Abdinoor, represented by Mr Hussein Wethow of Wethow and Duwane Advocates based in Mandera had challenged Mr Maalim’s nomination by UDM.
Mr Maalim was not a member of the Senator Ali Roba led UDM party until September 11, 2022, two days after gazettement of the list of nominated Members of the County Assembly.
It occurred to the IEBC that there was a different list in their records which was different from the list originally submitted and approved. The different list was a forgery.
Registrar of Political Parties (RPP) in a letter dated September 14, 2022 upon inquiry by the UDM confirmed that Mr Maalim was registered as a member of UDM party on September 11, 2022 at 1:47 pm by one Calvin William Habwe Chitwa under party membership number UDM 2022009001 as a regular member and he had digitally resigned from Jubilee Party using USSD code (*509#).
“It was impossible for Mr Maalim to have been lawfully registered as a member of the UDM and become eligible for nominations herein after elections yet the deadline for submission of party lists to RPP was on June 11, 2022,” the court observed.
The court ruled that the alteration of the list disenfranchised the petitioner due to acts and omissions of IEBC and Mr Maalim.
During the submissions, UDM vehemently denied that Mr Maalim was a member until his registration on September 11, 2022 two days after the gazettement of the list of Nominated Members of the County Assemblies by IEBC.
While further denying membership of Mr Maalim, UDM insisted that he (Maalim) did not pay any registration or nomination fees as required under the Party's Elections and Nomination Rules.
In his response, Mr Maalim insisted that he was a bonafide life member of UDM and that he has a life membership card.
He said he applied to be considered for party list nomination as a member of Mandera County Assembly representing youth.
He said any non-inclusion in the first list must have been an oversight or deliberate attempt by malicious officials of the UDM to deny him his recognition as a duly registered member of the party and the benefits that accrue thereto.
Mr Maalim in his response denied that the IEBC was satisfied with the list and that-the—said-list was the list published in the newspapers and uploaded on IEBC website.
He said he was aware that party list preparation is a preserve of political parties and IEBC usually adopts the party lists submitted by the political party.
Mr Peter Wasike, the presiding Magistrate observed that the issue to be determined was whether Mr Maalim was a fully paid up member of UDM party as at the time of the alleged nomination per gazette notice of September 9, 2022 or as at the time of publication of the party list on July 27, 20222 in the dailies.
“Noting that UDM availed evidence as per letter from RPP that the Maalim joined the UDM on September 11, after nominations were closed and even gazettement of the nominated MCAs had been done on September 9, it would have been clearer if not easier if Mr Maalim availed evidence of when he was admitted as a member of the UDM Party by any of the methods prescribed under the party constitution,” Mr Wasike said.
According to the magistrate, information on party membership is readily available to any member of the public who wishes to verify and that the Political Parties Act does not permit membership in more than one party.
“It is so strange that Mr Maalim in the submissions seemed to deny that the person listed in Isiolo County Jubilee Party list is not him yet all the names and ID number are for him,” said the magistrate.
Mr Wasike said it remained known to Mr Maalim how he was a member of two political parties which is illegal.
“The issue of membership in the party is so crucial to Mr Maalim perhaps more than to any other party herein since he is the one who stands the greatest prejudice. He was nominated and his nomination is under serious contention and challenge on the very issue of party membership,” Mr Wasike said.
The registration of Mr Maalim as a member of the UDM Party was done way past the General Elections of August 9, 2022 whilst Section 35 of the Elections Act requires UDM to submit its Party list to IEBC at least forty-five (45) days before the date of the General Election.
It emerged Mr Maalim’s proposers, Mr. Ibrahim Mohamed Alio and Mr. Hassan Derow were not proved to be members of the UDM Party therefore could not propose and second him as a nominee to the Mandera County Assembly.
“This court therefore finds that it has been proved to the required standard by the UDM that Mr Maalim was not a member at the time of publication of the party list in the Newspaper July 27, 2022 or even as at the gazettement of nominated members of the County Assembly on September 9, 2022 by IEBC,” Mr Wasike ruled.
The Magistrate added, “The net and logical effect is that Mr Maalim per the law and the party constitution was not eligible to participate in the UDM party nominations as a member and or as a candidate for nomination to the Mandera County Assembly”.
Mr Maalim was left off the hook in the perjury and forgery allegations by the court after the magistrate noted that the proceedings were by way of written submissions.
“The court did not have the opportunity to thoroughly scrutinize the documents in issue in the lenses of establishing a criminal offense, and neither did it have the advantage of an expert to assist it determine if indeed the documents are forgeries and that Mr Maalim is culpable” Mr Wasike said.
However, he warned that he had not made any definitive and conclusive findings on the authenticity of the particular documents in issue submitted by Mr Maalim save to have made the overall finding from the facts and the law.
“In that respect I find it unsafe to delve into this issue of forgery and perjury in this judgment. I believe the matter can be properly initiated and better pursued in the well-established criminal justice system process than through this election court process,” he said.