Petition challenging parties law may be referred to Chief Justice
Dr Mbae who is eyeing the Subukia parliamentary seat. He is seeking to protect MCAs and MPs eyeing elective seats from losing their positions. FILE
A constitutional petition filed by Kabazi Ward Representative Peter Kibe Mbae seeking to protect MCAs and MPs eyeing elective seats from losing their positions could be handled by a three-judge bench if the parties agree to have it referred to the Chief Justice.
Nakuru High Court Judge Joel Ngugi yesterday directed the parties to exchange documents within seven days before they can address the issue of whether the matter should be dealt with by an expanded bench.
Dr Mbae, through a certificate of urgency, had requested the court, pending the hearing of his petition, to issue conservatory orders restraining the Speakers of county assemblies and the National Assembly from declaring vacant a seat held by an MCA or MP who switches parties by the date set by the Independent Electoral and Boundaries Commission.
IEBC chairman Wafula Chebukati had in February directed that MCAs resigning from their parties must quit their seats by March 26 before submitting their nomination papers in April.
Justice Ngugi sought to know whether the parties were willing to have the matter heard by an expanded bench.
Dr Mbae, through his lawyer Elisha Ongoya, told the court he had no problem with an expanded bench as long the conservatory orders were granted.
“The respondents and interested parties are given two days to respond to the application that a conservatory order be issued directed to the Speakers of both houses, and whether the matter should be referred to the chief justice for the constitution of a larger bench,” ruled Justice Ngugi.
Dr Mbae, who is eyeing the Subukia parliamentary seat, sued last month, seeking to challenge the IEBC directive.
He sought to have Section 14 of the Political Parties Act, which Mr Chebukati relied on, declared unconstitutional.
Dr Mbae argues that the MCAs should be allowed to change parties without having to lose their seats provided they are within the IEBC election timelines.
Dr Mbae argues that the section, which aims to promote democracy and party discipline, is constitutionally deficient as it does not have provisions for unique circumstances that occur during the transition period in the election cycle.
The MCA sued the Attorney-General and the Speaker of the Nakuru County Assembly and listed the registrar of political parties, the IEBC, and the Speakers of the 47 county assemblies as interested parties.
In his supporting affidavit, Dr Mbae claims the law is silent on political rights and fails to put the issues into context.
He argues that if members decide to resign and lose their seats, it will be impossible to refill such vacancies and that may lead to disastrous consequences.
“Section 14 is deficient to an extent that it requires that a sitting MP or MCA resigns from his seat but does not offer an opportunity for refilling the seat hence exposing the constituents to non-representation for the remainder of the term of the respective houses of representation,” he argues in court documents.
Dr Mbae also wants the court to issue orders barring the Speakers of all county assemblies and the National Assembly from declaring a seat vacant once a member moves to another party.
While a March 4 ruling by the Court of Appeal dealt with the issue of MCAs seeking to vie for an MP’s seat, Dr Mbae’s petition seeks to protect MCAs and MPs who change their parties.
Justices Hannah Okwengu, Kathurima M’inoti, and K. Laibuta ruled that MCAs do not need to resign to vie for MP seats.
“Members of the county assembly do not have to resign because they automatically cease to hold the position by election date,” the judges said.
