Court of Appeal upholds Naisula Lesuuda’s nomination as senator

Naisula Lesuula. [PHOTO: STANDARD]

By KURIAN MUSA

NAIROBI, KENYA: Appeal court sitting in Nairobi has upheld the nomination of Naisula Lesuula as the woman senator for Samburu County.

Judges GBM Kariuki, Erastus Githinji, Mohamed Warsame, Daniel Musinga and Kathurima M’Inoti dismissed an appeal lodged by Lydia Mathia.

Her case aimed at a declaration that the independent Elections and boundaries Commission (IEBC) erred by altering a party list in the nomination.

In April 11, 2013, Mathia filled her case seeking the nullification of Naisula Lesuuda’s nomination; But Judge Roselyn Ougo of the high court dismissed the case.

Naisula who was number five in the party list of The National Alliance party submitted to the elections commission in which Mathia was top in the List.

In the ruling, the judges said that The National Alliance party erred in submitting a party list that did not conform to the elections Act 2011 as well as article 92 of the constitution.

While rejecting the appeal, the five judges held the high court decision that IEBC had a constitutional obligation to alter a party list.

The judges said that TNA did not follow the party’s constitution and the elections act that roots for proportional representation of the marginalised communities in the parliament.

“IEBC can reject a nominee if not qualified in accordance with the election standards and TNA submitted same list rejected by IEBC due to irregularities,” Judge M’Inoti read the judgement.

IEBC replaced the appellant-Lydia Mathia with the first respondent –Naisula Lesuuda to offer an opportunity to those marginalised communities that could not be elected a chance to be represented.

Mathia contended that ethnic diversity cannot override the democratic rights guaranteed in the constitution.

But the judges ruled that her position was inviting the court to interpret the law as though article 92 does not exist.

Appeal court held that the responsibility to monitor party list is vested in the IEBC and ‘it cannot run away’.

They said: “we have no difficulty in finding that TNA party had legal obligation to comply with the law.”

Evidence on record showed that TNA did not provide a list compliant with the constitution.

“Both IEBC and TNA failed to uphold the law. IEBC accepted a flawed list,” M’Inoti said.

In upholding Lesuuda nomination, Judge M’Inoti said IEBC did not alter the party list by adding a name out of that from TNA.

“A party list that is unconstitutional is not immune from inquiry, despite the provision that a closed party list cannot be amended,” the judges said.

IEBC, the court ruled, was justified in replacing Mathias’ name to observe the constitution.

Mathia welcomed the courts verdict and said she will consult her lawyer on the next steps.

“It appears that rights of young Kikuyu ladies are not being seen to be equal with those from other communities. I wish my colleague well, she is equally qualified to serve Kenyans” Mathia said.

Naisula (TNA party nominee) accompanied by ODM Party Samburu MP Mathew Lemparkel welcomed the decision.

“In times like this we join hands for our people,” Lemparkel said. The Samburu women who had come to court walked out in song and dance.