By PAUL OGEMBA firstname.lastname@example.org
Posted Thursday, July 11 2013 at 09:32
Posted Thursday, July 11 2013 at 09:32
The Makueni Senatorial by-election date has been pushed to July 26 to allow the hearing and determination of Kethi Kilonzo’s petition.
Justice Isaac Lenaola said Thursday he had disqualified himself from hearing the case and referred the matter to the Chief Justice to appoint a three-judge bench to arbitrate on the matter.
The judge said the postponement will allow the bench to rule on Ms Kilonzo's petition challenging the decision by the electoral commission’s dispute resolution tribunal to nullify her nomination.
The mini poll was slated for July 22.
On Wednesday, Ms Kilonzo, through lawyers Julie Soweto and Harun Ndubi, argued that the IEBC tribunal denied her right to fair administrative action and natural justice by selectively discriminating her and favouring her opponents in the Makueni Senate race.
"The IEBC tribunal contravened the petitioner’s right by sitting as a judge in a dispute in which the commission was not only active actors but also the accused since the nature of complaints concerned registration of voters, management and custody of the voter register which is in their hands,” said Ms Soweto.
The lawyers submitted that the IEBC denied Ms Kilonzo access to the documents they relied on to nullify her nomination and only ambushed her when the commission’s officials were called to table the documents which was contrary to rules on natural justice.
Hostile and biased
They accused the tribunal of being openly hostile and biased towards Ms Kilonzo during the hearing and for failing to recognise the conflict of interest given that the complaint was brought up by Jubilee Coalition after it failed to woo Ms Kilonzo to vie on their ticket.
“The tribunal had already taken a predetermined position on the dispute and demonstrated their lack of intention to give the petitioner a fair hearing. They conspired with her political competitors to deny her the right to inspect the materials presented as evidence before the tribunal,” said Ms Soweto.
Apart from seeking to set aside the tribunal’s decision, Ms Kilonzo wants the official campaign period in Makueni suspended and an order stopping the IEBC from preparing, making, printing or publishing ballot papers until her petition is determined.
A three-member tribunal of commissioners Thomas Letangule, Yusuf Nzibo and Mohammed Alawi on Monday dealt a blow to Ms Kilonzo’s quest to succeed her late father Mutula Kilonzo, ruling that she was not qualified to contest the seat since she is not a validly registered voter.
The tribunal said that Ms Kilonzo’s name did not appear in the electoral commission’s registers or in the green book and found that she was irregularly issued with the nomination certificate by the Makueni returning officer and went ahead to revoke it.
The decision generated heat within the political circles, with the Coalition for Reforms and Democracy accusing their Jubilee counterparts of having a hand in Ms Kilonzo’s disqualification.
Ms Kilonzo argued in her application that the tribunal failed to inform her in advance of the evidence they had against her in order to prepare a defence and that her legitimate expectation and constitutional right to contest for a political office has been unfairly taken away.
The lawyers said the decision denied Wiper Democratic Movement their right to field a candidate in any election and that unless the court overturns the decision, the gains the country had made in promoting democracy will be diminished.
Further Jubilee's cause
“To exclude a political party from the electoral process would undermine the constitutional underpinnings of democracy as well as deny the people of Makueni the opportunity to exercise their democratic right of electing a candidate of their choice,” said Ms Soweto.
Ms Soweto submitted that there will be no prejudice in stopping the by-election since the tribunal relied on rules and regulations which are inconsistent with the Constitution and for applying those laws selectively to further the cause of Jubilee.
She argued that the tribunal had no jurisdiction to review its own decision once it had issued the certificate to Ms Kilonzo and that any dispute would have been the subject of an election petition.
“The witnesses in support of the complaint were employees of IEBC and took direct instruction from the commission. How then could the tribunal be reasonable, objective, independent and impartial in a matter which they were sitting as a judge over their collective mistake?” posed the lawyers.
The lawyers said by accepting Immaculate Kassait’s testimony that the matter was under investigations, the tribunal could not in the same breath nullify Ms Kilonzo’s candidature on an issue under investigation.
Ms Kilonzo maintained that she is a duly registered voter at NCC hall in Lang’ata and seeks an order directing the IEBC to put her name in the register and include her name as a candidate in the Makueni Senatorial by-election.