ODM suffered another setback after the High Court in Kisii nullified the election of National Treasurer James Omingo Magara as South Mugirango MP.

The party has lately experienced wrangling within its ranks leading to a falling out between party leader Raila Odinga and Cabinet ministers William Ruto and Najib Balala. Ruto is a party deputy leader, while Balala is a member of the Pentagon, the arty’s highest unofficial decision-making organ. The other Pentagon members are Deputy PM Musalia Mudavadi, and Cabinet ministers Charity Ngilu and Joseph Nyagah.

The blow came on a day that Ruto took on Prime Minister Raila Odinga in a bare-knuckle attack over his "insensitive and vengeful" leadership (see separate story). The party has lost the support of several MPs from the Rift Valley allied to Ruto following Raila’s stand on post-election violence suspects and the terms of evicting settlers from Mau Forest Complex.

The by-election in South Mugirango that will follow the court ruling will pose a great challenge to ODM in general and Raila and Ruto in particular.

In a two-and-a half-hour ruling, the High Court declared that Magara was not validly elected as MP.

The Trade Assistant Minister and ODM National Treasurer sat pensively as Kisii Resident Judge Justice Daniel Musinga delivered his 104-page judgment. The ruling attracted celebrations from petitioner Manson Nyamwenya and his supporters.

"Considering all the glaring anomalies and taking into account all the incidents of non-compliance with mandatory and important provisions of the law, I have come to the conclusion the election was not transparent, free and fair," Justice Musinga said.

Eligible to defend seat

However, the judge gave Magara a lifeline after it absolved him of any election offence in respect of the disputed polls. This means Magara, who was represented by Katwa Kigen, is eligible to defend his seat. Lawyers Ombati Omwanza and Onchari Otiso represented Nyamweya.

The court verdict could mark the beginning of the political divorce between Raila and Ruto.

Alternatively, the Omingo misfortune may turn out to be the beginning of a political healing process within the party.

All this will depend on three considerations — whether ODM grants Omingo a direct nomination ticket to defend his seat, whether both the PM and Ruto rally behind him or if he abandons ODM and vies on the ticket of another party.

Ideally, the anticipated by-election will either see the final split between the PM allied group and their counterparts allied to the Eldoret North MP or it will accord the two leaders an opportunity to mend fences by rallying around Magara.

If Raila and Ruto fail to agree on Magara as their common candidate for the South Mugirango seat, then an interesting battle will be on the cards as both leaders crisscross the constituency to campaign for their preferred candidate.

That Magara and Ruto have been close is an open secret. Their ties date back to the 2007 General Election campaigns where they were accosted by armed youths locally known as Chinkororo as they attempted to attend a rally addressed by former Cabinet minister Simeon Nyachae of the rival PNU.

In yesterday’s ruling, Magara got a reprieve when court ordered the then South Mugirango Returning Officer Joseph Omambia Sanganyi and the Interim Independent Electoral Commission (IIEC) who were respondents to bear costs of the petition to Nyamweya as well as those of Magara.

Headhunting

The judge said free, fair and transparent elections are fundamental in promoting our nascent democracy and everything must be done within the confines of the law to ensure that such elections are conducted in accordance with the law.

He faulted IIEC for contravening its laws by headhunting Omambia who never applied for the job since he was five years above the mandatory 60. Omambia should have declined the offer as well, the court said.

Efforts by Magara to apply for stay of the orders so that the Speaker does not declare the seat vacant to allow him time to appeal were dismissed after Omwanza opposed them.

This was the second election petition concluded before Justice Musinga culminating from 2007 after the Bomachoge one where the then MP Joel Onyancha lost his seat to Simon Ogari in a by-election.

Since joining politics, Magara has won easily, courtesy of various political waves. This time around, however, it might be a tricky affair considering that he has fallen out of favour with Raila. Fresh from a by-election win in Bomachoge mid this year, Raila and his ODM still enjoy massive support in the region.

In essence, the PM believably delivered the seat to his party with little help from Magara. For while he was addressing a campaign rally for the eventual winner Simon Ogari, Magara hosted Ruto and a several "rebel" ODM MPs in his constituency a few kilometers away.

It was at this meeting at Nduru Boys School that he paraded officials of the People’s Democratic Party officials led by Chairman Stephen Nyarangi and declared: "This is the party to watch."

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