The Thirdway Alliance party has urged Independent and Electoral Boundaries Commission (IEBC) chairman Wafula Chebukati to resign and for the printing of presidential ballot papers to be suspended.
The party also wants the IEBC to roll out fresh nominations of presidential aspirants, saying the process that produced the four contenders – Deputy President William Ruto, Raila Odinga, George Wajackoyah and Mwaure Waihiga – was illegal.
“We demand that their nominations be quashed and the presidential ballot printing be shelved,” the party said.
This follows Tuesday’s determination of a constitutional petition that the party had filed at the High Court in Nairobi seeking to have the Elections Regulations (18) (2)( C) declared unconstitutional, a request that Justice Anthony Mrima granted.
Justice Mrima also heaped together parts 24(2)(c) and 36(2)(c) of 2012 and as amended in 2017 to be offensive to articles 2(4), 10, 27, 38(3), 83(3), 99(1)(c), 137(1)(d) and 193(1)(c) of the Constitution.
In celebration, the party leader, Ekuru Aukot, and his national chairman Miruru Waweru said Mr Chebukati had failed to interpret the law in tandem with the favourable ruling though the issue had been presented to him on June 5 before it was moved to court.
“The IEBC Act stipulates that the chairman have qualifications equivalent to those of a Supreme Court judge and that being the case, we demand for his immediate resignation for incompetence and inability to interpret, protect and uphold the law,” the two wrote.
They said they sought the chairman’s indulgence to discard the application of the offending regulations “but he failed to interpret the law correctly and proceeded to deny some of us clearance based on the same now declared unconstitutionality”.
Besides Mr Aukot, others who were barred by the IEBC on the same grounds were Reuben Kigame and Mwangi wa Iria, and Justice Mrima affirmed that there was an error “in barring the aspirants on flimsy grounds as lack of signatures of supporters”.
Justice Mrima declared ‘unconstitutional’ the IEBC requirements that aspirants present copies of the national identity cards of supporters from at least 24 counties.
He said the provision violated Article 31 of the Constitution that details the privacy of an individual as an inalienable, and the Data Protection Act.
They now want “a proper nomination exercise carried out in accordance with the law and the Constitution … without malice, differential treatment of aspirants and outright bias as demonstrated by Mr Chebukati”.
They accused Mr Chebukati of seeking to amend the Constitution through the backdoor “where in application of the annulled regulations he in essence sought to illegally amend article 137(1) d”.
The article that guides the qualifications and disqualifications for election as President states that “a person qualifies for nomination as a presidential candidate if (d) is nominated by not fewer than two thousand voters from each of a majority of counties”.
The party argued that there was a correlation between the alleged incompetence of Mr Chebukati today and the annulment of the 2007 General Election, “where by the dispute and subsequent order that the presidential vote be held afresh, lives and money running to billions were lost by the economy”.
They said the order that the 2007 presidential vote be held afresh was disregarded by Mr Chebukati, who went ahead to “gazette two individuals (Uhuru Kenyatta and Raila Odinga) although the election had been declared null and void”.
“We (in 2007) successfully moved the court to enforce the Supreme Court judgement and the High Court ordered that the name of Dr Aukot be included [on] the repeat elections ballot paper,” they said.
They added that “the above are just a chronology of a litany of incompetence, constitutional violations and other wrongs committed by Mr Chebukati while serving as chairman of the IEBC”.
They summed up their onslaught thus: “It is not tenable to allow such an incompetent individual to oversee [the August 9 General Election] … this country has no shortage of competent and upright people … he must exit IEBC now”.
Mr Chebukati said the commission’s legal experts were studying the judgment and would come up with a response at an appropriate time and through the right channels. By the time of publishing this story, no response had been communicated.
However, lawyer Timothy Mwangi said the IEBC can appeal, apply for judicial guidance on whether the ruling means it will have to hold fresh nominations of presidential aspirants or ignore the ruling and see whether it will be taken to court so as a more direct order can be made.
“It is a legal tangle and there are endless dynamics in it … the best one can do is to wait for the IEBC to make a move regarding the pronouncement … You can say that the game has just begun,” he said.