By Alex Ndegwa

NAIROBI, KENYA: At least six former Cabinet ministers are among 112 people whose election as Governors, Senators and Members of Parliament is being challenged in court.

The outcome of the legal battles could shake up the balance of power between Jubilee and CORD in the county governments and in the Legislature. Under new election laws, the courts do not have to order a by-election but can declare a winner after scrutinizing the evidence.

More than half the 23 election petitions that have been filed against County Governors voted in on March 4 target CORD-affiliated leaders.

Former ministers Amason Kingi and Wycliffe Oparanya are battling to preserve their elections as governors of Kilifi and Kakamega counties.

Senators Moses Wetangula (Bungoma) and Chris Obure (Kisii), who were their colleagues in the former Grand Coalition Cabinet, also face petitions. Other former ministers in court are Esther Murugi (Nyeri Town) and Ababu Namwamba (Budalang’i) who will have to defend their parliamentary seats.

Nairobi Governor Evans Kidero, former Government Spokesman Alfred Mutua (Machakos) and former Prime Minister Raila Odinga’s aide, James Ongwae (Kisii), are other governors whose election has been contested.

Governors

Of the total 181 disputes courts are scheduled to arbitrate, 23 are petitions filed against the election of Governors, eleven are against Senators, 69 on MPs and nine against Women Representatives. An additional 65 petitions seek to overturn the election of County Assembly Representatives.  Another four were lodged against Speakers of the regional assemblies. This is not the final list of petitions, the Judiciary announced on Friday.

“The Judiciary will give the final figure (later), as some petitions filed late had not been captured by our electronic Case Management System as at the time of concluding this statement,” said Naim Bilal, the Judiciary Director, Public Affairs and Communication.

The legal deadline for filing election petitions expired on Wednesday. The Elections Act stipulates all challenges shall be filed within 28 days after the date of publication of the results of the election in the Kenya Gazette.

To avoid delays in settling the disputes, the Act directs that petitions must be heard and determined within six months of their filing.

The petitions are closely watched because new electoral laws permit a court to make a declaration of which candidate was validly elected. Unlike before, when courts referred successful petitions back to the ballot, they now have the powers to declare as winners those who prove they were unfairly robbed of victory.

In 2010 Daniel Karaba successfully petitioned the court to nullify the election of Ngata Kariuki, as Kerugoya Kutus MP after it established that Karaba had actually won the 2007 poll by two votes. But under the old law, the court could only order a by-election. Karaba lost.

Chief Justice Willy Mutunga has cancelled leave for judicial officers between March and October to facilitate the speedy determination of the disputes. The Elections (Parliamentary and County Elections) Petition Rules 2013 further provide that courts conduct hearings on a day-to-day basis until trial is concluded. Even where an adjournment is of necessity it shouldn’t be for more than five consecutive days. The rules were imposed to forestall unnecessary interruptions that in the past delayed determination of petitions, with judgements sometimes coming close to expiry of parliamentary terms. 

Among the hotly contested petitions include that brought by Suleiman Shahbal, challenging the election of Hassan Joho as Mombasa Governor.

Senators facing petitions

Siaya Governor Cornel Rasanga will also defend his election against the petition lodged by archrival William Oduol.

Senators Johnstone Muthama (Machakos), Billow Kerow (Mandera), Boy Juma (Kwale) and Wilfred Rottich (Bomet) have had their election disputed.

Other Governors facing election petitions are former assistant minister Peter Munya (Meru), former Kenya Airports Authority chairman Martin Wambora (Embu), Nderitu Gachagua (Nyeri), and Jack Ranguma (Kisumu).  Petitioners in the cases allege electoral malpractices, including voter bribery, ballot stuffing, irregular tallying and intimidation, among other issues.

Disputes involving parliamentary elections and election of county governors are being handled in about 18 High Court stations.

The Elections Act provides that a question as to the validity of the election of county Governor “shall be determined by High Court within the county or nearest to the county”.

In anticipation a surge in petitions arising from the new devolved government structure and to lessen the workload on the High Court, the only court that had jurisdiction to hear election petitions, the law was amended.

Disputes involving county assembly elections are now being heard by the Resident Magistrate’s Court designated by the Chief Justice.