By Geoffrey Mosoku
Mr Musalia Mudavadi disengaged from Jubilee Alliance and set in motion a process that could see the coalition anchored by Mr Uhuru Kenyatta and Mr William Ruto battling for legal right to the coalition name.
Mudavadi’s United Democratic Forum set off to set its own race but left Ruto and Uhuru with the onus of proving its right to the name, failure to which it could be faced with legal challenges before or after elections.
Seething with anger that he was duped into the coalition with the unfulfilled signed promise by Uhuru and Ruto that he would be the flag-bearer, Mudavadi appeared to exact his ultimate revenge by pushing for the dissolution of Jubilee.
He did this by activating the ‘dissolution by mutual consent’ clause in the additional document the three leaders signed on December 4, on top of the one Uhuru and Ruto had earlier signed and deposited with the Registrar of Political Parties.
The line which Mudavadi is using to drive the point home that the second document submitted to the Registrar of Political Parties on December 4, superseded the initial Uhuru-Ruto deal, reads: “In case of inconsistency between the Initial Agreement and this Addendum, the contents of this Addendum shall prevail.”
Sources within UDF revealed the party decided to pursue this option instead of pulling out on its own because that would have meant the party would have had to give a three-month notice.
Instead of this long route, which would have seen the exit formalised just a few days to election, Mudavadi’s strategy team chose to go on their own while leaving Uhuru’s The National Alliance and Ruto’s United Republican Party fighting off legal challenges posed by UDF’s move.
TNA chairman Johnson Sakaja argued that by UDF resorting to an arbitration process, it was simply an act of ‘slowing down’ the Jubilee team. He accused UDF of failing to show up at Jubilee Alliance presidential nomination and later filing the case for arbitration with the Registrar. “They wanted to slow us down but we want to tell them that we are already on the highway and we are unstoppable,” he declared.
Sakaja said with only weeks to the General Election, they could not waste time in arbitration and tribunals that allegedly lacked basis. “We only have close to 65 days to the polls and we are telling them (UDF) we can no longer wait for them,” he said.
Mudavadi pulled the stunt after negotiations by the dispute resolution team constituted by TNA, URP and UDF deadlocked, with the two wrangling groups submitting two sets of proposed agreements for signing, and neither side willing to sign the other’s.
By the fall of last evening the fate of Jubilee alliance remained unclear with Mudavadi pitching on the claim Jubilee legally won’t be complete without UDF and insisting that the coalition’s slogan by the same name ceased to exist.
LSK chairman Eric Mutua said the matter would have to find its way back to the Registrar who has jurisdiction over the determination of disputes arising from the use of a certain name for purposes of an election. “If UDF contributed to the formation of the alliance and coining its name, then it can lay claim to the name Jubilee,” Mutua said.
University of Nairobi political scientist Dr Adams Oloo argued UDF’s claim could pass as legitimate if it participated in coining of the name.
“At Jevanjee (on December 3), the name jubilee was not used but at Laico Regency Hotel (the next day) we heard Ruto using the name Jubilee Coalition. Therefore if UDF can prove it contributed to the name and under the intellectual property rights law, all parties that patent a certain name have equal rights to it,” Oloo said.
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The don however explained that if TNA/URP prove they had used the name Jubilee before UDF’s entry, then Mudavadi’s camp will have no basis to demand for disillusion of the entire coalition.
Belgut MP Charles Keter has already revealed that through his ally Victor Yegon, URP applied for registration of the use of the name Jubilee alliance.
However, Uhuru’s and Ruto’s teams on Wednesday condemned Mudavadi’s move even as the arbitration meeting convened by Registrar of Political Parties Lucy Ndung’u for the second time failed to reach an agreement. The two protagonists presented two sets of documents to guide their separation.
The teams walked out of the arbitration table with each giving journalists the two documents in which both sides blamed each other over failure to sign at least one of them.
UDF documents provided for the dissolution of Jubilee alliance while that of TNA/URP stipulated that the Addendum that brought UDF on board on December 4 had been expunged.
Mudavadi’s side insisted that through their letter, the coalition known as Jubilee stands dissolved but TNA/URP side dismissed UDF by likening its demand to a polygamous marriage where the second wife wants the entire marriage to be dissolved when quitting.
“You cannot accept to be a second wife and when you want to leave your husband, you demand that even the first marriage to your co-wife is dissolved,” TNA Secretary General Onyango Oloo told journalists shortly after the walkout by both parties.
UDF Chairman Osman Hassan said the addendum stated that in case of discrepancy in provision of both the original deal and December 4 agreement, the addendum supersedes the original contract.
He further argued in law, an addendum or simply additional agreement on top of the first, was part of the original contract and could not be separated.
He also dismissed TNA’s analogy of a sulking second wife arguing the coalition must be dissolved. “Even if you are in a polygamous marriage as they would like to put it, it doesn’t mean the first wife has more rights than the second wife as long as both have signed a contract,” the UDF boss said
He explained their camp had decided to make the move to seal any legal loopholes that may be exploited by their rivals to block them from moving on with their programmes.
Hassan and UDF Secretary General Dan Ameyo had prepared a signed document titled; Dissolution on coalition for national healing and reconciliation, inclusiveness and prosperity, which they wanted their partners to sign. “Whereas TNA, UDF and URP, all political parties registered under political parties Act…entered into coalition, duly executed by the three and deposited with the Registrar of Political Parties, TNA, URP and UDF do hereby consent dissolve the said coalition,” the URP drafted document read.
The document signed by URP and TNA officials was titled; Agreement on consensual and amicable termination of the addendum dated 4th December 2012 signed by and on behalf of TNA, URP and UDF. “By free consent but without prejudice to possible political cooperation before or after the General Election, TNA, URP and UDF do hereby terminate Addendum Number 1 signed on 4th December 2012, and do hereby discharge each other hereto from all legal and political obligations ensuing from the said Addendum.”
Last evening, TNA insisted UDF had no basis in law to lay claim to the name Jubilee, arguing its inclusion in the alliance had not been sanctioned by any top decision-making organ of the three parties.
“The Addendum to invite UDF to the Jubilee coalition was not approved by the National Governing Council (NGC) or National Delegates Convention (NDC) of URP, TNA or UDF and thus cannot be used to lay claim to jubilee,” Oloo argued.