Former senator Harold Kipchumba.
The replacement of former nominated MP John Mbadi from the ODM party list has kicked off a storm with officials reportedly angling on who is next in line.
This after Speaker of the National Assembly Moses Wetang’ula declared the seat vacant and wrote to the Independent Electoral and Boundaries Commission (IEBC) for Gazettement of the next candidate.
According to insiders within ODM, there has been an impasse on the next person in the list, whether the choice should be based on gender or profession.
Nation.Africa has reliably learnt that although it might take awhile for the replacement to be effected owing to the absence of the IEBC commissioners to Gazette the candidate, a letter by the legal department settles the legal quagmire that might set a precedence going forward.
And as a result, lady luck might shine upon former senator Harold Kipchumba as he is poised to replace Mr Mbadi, the Cabinet Secretary (CS) for National Treasury and Planning.
In a letter dated August 23rd which Nation.Africa is privy to, IEBC director legal Chrispine Owiye on behalf of Chief Executive Officer (CEO) Marjan Hussein Marjan and addressed to Ibrahim, Isaack and Co. Advocates on ODM party 2022 nominees to the National Assembly, he makes reference to section 37 of the Election Act that provides for re-allocation of party list seats.
Mr Owiye explains that the section provides that during re-allocation, the commission ought to consider gender of the person who was occupying the seat and re-allocate it to the next nominee on the list of the same gender.
It states: “if a representative from a political party list dies, withdraws from the party list, changes parties, resigns or is expelled from his or her party during the term if the representtaiv4e, the seat of the representative shall be allocated to the next candidate of the same gender on the respective political party list.”
Therefore, Mr Owiye argues, “It is our considered observation from the cited provision that the mandate of re-allocation of party list seat is a preserve of the members if the commission. As such, we advice that the commission presently is not in a position to process the request of your client for want of commission chairperson and members in post.”
Responding to the letter by the advocates dated August 1st, Mr Owiye confirms that the commission is in receipt of declaration of vacancy from the speaker, notifying on the arisen vacancy in the National Assembly, under the ODM party list.
He goes ahead to make reference to Article 90 of the constitution, which confers upon the commission the mandate to allocate and re-allocate special seats through political party list, read together with section 36 (5) of the Election Act, which mandates the commission to allocate seats under marginalized list.
Section 36 (5) of the Act reads: “The allocation of seats by the commission under Article 97 (1) (c) of the constitution will be proportional to the number of seats won by the party under Article 97 (1) (a) and (b) of the constitution.”
Subsequently, in a letter dated August 16th addressed to speaker Wetang’ula and copied to ODM Secretary General (SG) Edwin Sifuna, on the notification of occurrence of a vacancy for the nominated MP, ODM party, Mr Marjan indicates the legal quagmire the commission finds itself in.
“As you are aware, the commission is currently not quorate for want of the chairperson and commissioners. Owing to the above, kindly note that we may not be in a position to process the request to fill the vacancy of the MP of the National Assembly nominee, ODM within the legal timelines,” stated Mr Marjan, in response to Mr Wetang’ula’s letter dated August 14th.
Going by the latest development, despite the absence of the commission, Mr Kipchumba can rest easy that he is next in line to succeed CS Mbadi, contrary to earlier assertions by party members fronting Mr Kerota.
Mr Kipchumba lost his nomination to the senate after it was annulled by the High Court, six months after he was nominated by ODM party to represent persons with disability and replaced by senator Godliver Omondi, now late.
The same happened with Jubilee Coalition party where Ben Njoroge of the defunct the National Alliance nominee also replaced Linet Kemunto in 2013.
In 2017, he topped the ODM party list for the senate, however going by the majority in the elections, the male nomination for persons with disability went to Senator Isaac Mwaura of Jubilee party.
In 2022, he was in the National Assembly party list instead of the senate.
“The party leadership decided to include him in the National Assembly party list. However, he did not meet the cut off. He nominated ended just before his names based of the party slots allocated after the elections,” disclosed an official in the ODM party aware the happenings.
Apart from Mbadi’s vacant slot, the commission is yet to conduct by elections in Banida and Magarini constituencies, with Ugunja adding to the list after the resignation of Opiyo Wandayi to join Cabinet as CS for Energy and Petroleum.
The same situation has befallen a number of ward where either the elected representative has died or vacated office through other means. The fate of the composition pf the selection panel to recruit the commissioner still lies in court.
