Kingi, Muturi want Omtatah case on IEBC recruitment thrown out

Senate Speaker Amason Kingi and Attorney-General Justin Muturi have asked the High Court to dismiss a petition by Busia Senator Okiya Omtatah, for nullification of the ongoing recruitment of the chairperson and six members of the electoral commission.

Mr King and Mr Muturi, alongside the selection panel that is undertaking the recruitment at the Independent Electoral and Boundaries Commission (IEBC), told Justice Mugure Thande on Friday that the petition lacks merit and should be dismissed.

In his grounds of opposition, the AG said the petition is incompetent and an abuse of the court process.

The court heard that Mr Omtatah, being a senator, does not have the capacity to lodge a public interest case in court against a decision of the Legislature.

Since the gist of Mr Omtatah’s case is a claim that the IEBC selection panel was appointed using a law illegally passed by the Senate, the court heard that he failed to attend the senate sitting when the disputed law was being debated and passed.

Mr Omtatah’s petition seeks a declaration that the IEBC (Amendment) Act No1 of 2023 as unconstitutional because senators disregarded a report of the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights.

He states that the report had proposed amendments to the Act and contends that committee chairman Hillary Sigei withdrew the report from the floor of the House on January 19, without the consent of committee members.

“The Standing Orders of the Senate are clear that once a report of a committee is tabled in the House, it must be subjected to a vote, where it is either adopted (with amendments if need be) or rejected. There is no mechanism for the withdrawal of a committee report,” he argues.

He is also a member of the said committee.

According to Mr Omtatah, the import of the withdrawal of the report was that the Act was passed illegally and without public participation.

Therefore, he claims, the selection panel was appointed using a law that was passed illegally by the Senate. He wants the said law invalidated and the selection panel declared null and void.

But lawyers Edward Libendi, for the Senate Speaker, and Mbarak Awadh Ahmed, for the selection panel, on Friday told the court that it was the proposed amendments that were withdrawn, not the report.

“A Hansard record of January 19, 2023 afternoon session indicates that the petitioner was absent. He was not present in the House. The Hansard is the only authoritative record of Parliament on what transpired in the House. If he was present, he ought to have risen on a point of order and objected to the withdrawal of the amendment. He has not explained to the court why he was absent during that particular sitting of the House,” said Mr Mbarak.

On Mr Omtatah’s suitability to sue, the lawyer said that though the case was filed on public interest, “a public interest litigation must be commenced on good faith and a State officer such as the petitioner, who is also a member of a political party, lacks capacity to instate case in public interest”.

Regarding claims that the Act was not subjected to public participation, lawyer Libendi said the Senate invited members of the public and stakeholders through newspaper advertisements.

Subsequently, he said, the committee received nine written submissions.

On his part, Mr Omtatah insisted that he had the capacity to sue and that the filing of the petition was in his pursuit to defend the Constitution.

“My being elected senator does not remove me from the obligation under Article 3(1) of the Constitution - to defend and uphold the Constitution. That is an obligation placed on me. There is nothing in Chapter 6 stopping a public officer from moving to court,” he said.

The hearing continues.

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