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IIEC says the controversial High Court ruling halting by-election amounts to usurping its powers and vows to challenge it at the Appeal Court
The electoral commission on Saturday accused the High Court of usurping its powers as wide condemnation greeted the Friday injunction stopping the Kamukunji parliamentary by-election.
The Interim Independent Electoral Commission (IIEC) on Saturday held a daylong meeting with their lawyers and the candidates in the Kamkunji by-election after which the chairman Issack Hassan announced the postponement of the exercise until a later date.
The postponement means that the process will start all over again. Campaigns have also been stopped forthwith but will be re-opened through a gazette notice once the court settles the matter.
The Commission has also appointed lawyer Pheroze Nowrojee to lodge an appeal at the Court of Appeal on Monday. The appeal, Mr Hassan said, would seek to overturn the injunction.
On Friday High Court judge Daniel Musinga temporarily halted the by-election scheduled for tomorrow until a petition filed by an aggrieved aspirant is heard and determined.
The applicant, Paul Waweru Mwangi of the National Vision Party challenged the legality of nominations conducted by the Interim Independent Electoral Commission and the returning officer Joseph Masindet on April 27 and 28.
Mr Mwangi complained that his nomination papers were rejected by the returning officer.
In his ruling Justice Musinga said the IIEC violated the aspirant’s constitutional right to be a candidate in the by-election.
“If the court, having found that the nomination exercise was seriously flawed, fails to grant an order of injunction to restrain the respondents from holding the by-election, it will be frustrating all the gains that have so far been made in our electoral process,” said the judge.
But Mr Hassan said none, including the constitutional court, can override the electoral body’s duty to solve disputes at the nomination level.
Justice and Constitutional Affairs minister Mutula Kilonzo also criticised the High Court ruling stopping the by-election which he described as ‘ridiculous’.
Mr Kilonzo said the ruling was uncalled for and the timing suspect.
“I don’t want to join political parties who have expressed displeasure with the ruling but as a justice minister I feel the ruling coming at the eleventh hour was a setback for democracy,” the minister told journalists in Machakos on Saturday.
Mr Kilonzo said such a ruling should have been made at the onset of the political campaigns.
He said an electoral process cannot be challenged before the ballot and said the law allows individuals dissatisfied with the outcome of an election to petition.
“That is exactly what the ODM candidate did; he felt his rights to a fair election were deprived and chose to challenge the results after the polls and not before,” said Mr Kilonzo.
The minister said he will read the ruling on Monday before issuing an official statement.
And in Nairobi, the IIEC chairman left nothing to the imagination concerning his feelings over the Court ruling.
“IIEC received the orders stopping the Kamukunji by-election on Friday with shock,” said Mr Hassan. “The ruling sets a very bad precedent in this country. It is the first time that a court of law is stopping an election.”
Three commissioners – Simiyu Wasike, Davis Chirchir and Douglas Mwashigadi – and the chief electoral officer James Oswago accompanied the chairman.
Also in the meeting was the Commission’s director of legal affairs Praxides Tororey and the returning officer for Kamukunji Joseph Leboo Masindet and other secretariat staff.
“In our view the challenge to the nomination process by the candidate and the entire petition was filed in bad faith, it was mischievous and the sole purpose was to stop this by-election,” Mr Hassan added.
The Commission is reading mischief on the part of the petitioner Paul Waweru Mwangi of the New vision Party. IIEC says that the petitioner filed the constitutional application on May 11 while service was effected on the Commission on May 17.
The Commission was required to respond the following day on May 18. The Commission is also unhappy that the court delayed giving its ruling until Friday.
“The court was to give its ruling on May 19 (Thursday) but this was not done, and it was put off to Friday May 20, essentially denying the Commission an opportunity to challenge it. The proceedings were also not available even at close of business on Friday,” said Mr Hassan.
Mr Mwangi, IIEC maintains, did not meet the required qualifications for nomination. Already the Commission says it has spent about Sh40 million in preparing for the Kamukunji by-election. The Commission hired a staff of 600 as clerks and had also printed the ballot papers.
“One of the Commission’s values is respect for the rule of law and will therefore adopt constitutional means of challenging the court decision. The Commission will therefore comply with the court order, despite its reservations in the reasoning of the Court,” he said.
In Siaya, two ODM legislators Jakoyo Midiwo (Gem) and John Mbadi (Gwasi) alleged that PNU engineered the move to stall the by-election after sensing defeat.
The Kamukunji by-election was billed a key popularity test for prospective presidential candidates in 2012 and in particular Prime Minister Raila Odinga, his deputy Uhuru Kenyatta, Vice-President Kalonzo Musyoka and Narc-Kenya chairperson Martha Karua.
ODM fielded Ibrahim Ahmed, PNU AllianceYusuf Hassan and Narc-Kenya Brian Weke. Other candidates are Muthoni Kihara (GNU), James Matagaro (Kenya Social Congress), David Waihiga (Agano) and Daniel Omao (Ford People).
Reported by Walter Menya, Bob Odalo, Eric Oloo, Nyambega Gisesa and Oliver Mathenge