Spotlight has turned on acting Registrar of Political Parties Lucy Ndung’u following a stinging tribunal decision on Tuesday which tore into her conduct and commitment to public service.
The Political Parties Disputes Tribunal’s decision restoring former President Mwai Kibaki’s Party of National Unity (PNU) to life after an irregular dissolution has left Ms Ndung’u clinging dangerously on the edge of public mistrust at best or possible removal from office at worst.
In their judgment, the three members of the tribunal – Kyalo Mbobu (chairman), James Atema and Paul Ngotho – painted a picture of a registrar who had failed in her duties, who dissolved PNU ahead of its own dissolution and who deceived complainants pleading for help.
Ndung’u (pictured) has been acting as a registrar since 2011 when her mandate ended. She has been hanging on a clause which allows her to continue acting until a new registrar is recruited. “The respondent (registrar of political parties) does not come across as someone who was carrying out a statutory duty in good faith,” the three concluded after analysing her role in the dissolution.
According to evidence produced at the tribunal and confirmed by the judges, Ndung’u’s gazette notice dissolving PNU into Jubilee was dated September 8 but was published a day later on September 9.
September 9 was the same day that a section of party members led by Chairman John Kamama purportedly held a National Delegates Conference (NDC) to approve the merger. It is also the same day Kamama appeared at the Jubilee affiliate parties meeting in Kasarani and declared that PNU had died.
On the same day, the instruments of the merger, resolution of PNU executive committee dated June 3, 2016, notice calling for the NDC dated June 3, 2016, agenda of the NDC dated September 5 and minutes of the NDC held on the same day (September 9) were received at the Registrar’s office.
“How then did the Registrar sign a gazette notice dissolving PNU on September 8, 2016? This shows that she reached the decision to dissolve PNU even before the party’s delegates supposedly met to dissolve their own party. The timing of the gazette notice is clearly a serious procedural anomaly in the dissolution of the party and does not comply with the law,” the judgment reads.
Besides the matter of the date, the judges also found that Ndung’u abdicated her responsibilities in the Political Parties Act of ensuring that the dissolution followed the law. They rejected her claims that she was a mere conduit through which political parties are dissolved.
Her lawyer had argued that her role was simply to receive merger instruments and publish them in the Kenya Gazette within seven days.
“The Registrar’s role is not merely clerical receipt of merger documents and the blind gazettement of the same. The role goes beyond mere collection of documents to ensuring that the merger process has been undertaken in accordance with the relevant party’s constitution,” the tribunal said.
Contempt of court
They said it cannot be for nothing that parties are expected to deposit their constitutions with her office. Further, the judges established that the signatory to the merger misrepresented himself yet the registrar did nothing.
“The evidence adduced before the tribunal shows that Mr Kamama is not the chairman of PNU. As such he had no authority to sign such an important document on behalf of the party. The registrar was required to reject the entire process,” they said.
The judges further faulted the registrar for two other things – dissolving the party against a pending dispute resolution process within the party and deceiving PNU complainants by giving them false hopes when they objected to the dissolution.
According to the evidence presented, the two factions of the party – one led by Kamama (for merger) and the other led by Secretary General John Anunda (against merger) had entered consent to postpone the September 9 NDC to allow the tribunal to settle a pending dispute on the same matter.
However, in defiance of their own consent and behind the backs of the Anunda group, the Kamama group proceeded with the NDC on September 9 in an act which the judges described as “pulling the rug from under their own feet”.
When Anunda’s group wrote to the registrar objecting to press comments attributed to her that PNU had dissolved, the registrar told them that the matter was in court. Unknown to Anunda’s group, the registrar had already gazetted the dissolution.
“In telling Anunda’s group that questions regarding dissolution of PNU were sub-judice and reassuring them that she would await the outcome of the court process having already gazette the merger, the registrar acted dishonestly and in contempt of court,” the judges said.
They added: “We must condemn such conduct coming from a public official in the strongest terms possible.” The judges annulled her Gazette Notice, directed her to correct the error in fresh Gazette Notice within 14 days. They also ordered her to pay 50 per cent of the suit costs while Kamama and Alphonse Musyoki, the Organising Secretary of Kamam’s group, will share the other 50 per cent.
Yesterday, Ndung’u maintained that she followed the law to the letter.
“They did not say that I did not follow the law, did they? If you read the decision you will find that they only found that the instruments of merger were signed by the wrong people,” she said.
She denied dissolving the party a day before it dissolved itself: “That was a typo, an error of the date which the tribunal rode on to fault us. We observed the law.”
