Court declines to stop Omar from vying in Mombasa gubernatorial elections

 

Mombasa Senator Hassan Omar and his running mate Linda Shuma (behind Omar) at the High Court in Mombasa yesterday. [Photo: Kelvin Karani]

The High Court in Mombasa has refused to issue orders barring Mombasa Senator Hassan Omar from contesting for governorship.

Justice Eric Ogola yesterday said that he did not want to interfere with the programme of the Independent Electoral and Boundaries Commission (IEBC) and its time frame with only a week left to the elections.

“The matter raises pertinent confusing issues in the Constitution but I am convinced that the petition is not urgent enough for me to issue orders seeking to stop or derail the election process scheduled for August 8. The matter touches on all the senators and MPs and this court does not wish to issue any orders that will affect the elections. So the matter will be heard after the elections,” said Ogola.

Breached law

On July 29, Hamilton Mwakitele Walongo, a voter in Mombasa, moved to court seeking orders to block Omar from contesting on grounds that he had breached the law by not resigning as a senator prior to being cleared to vie.

“I want the nomination of Omar for the position of governorship, Mombasa County, by Wiper Democratic Party and subsequent acceptance of the nomination by the IEBC be declared improper, unlawful and consequently null and void,” said Walongo in his affidavit filed last Thursday at the High Court under a certificate of urgency.

The petitioner argues that Article 180(2) disqualifies Omar because he is a State officer who is supposed to resign from his senatorial position before being gazetted by IEBC as a candidate.

“Senator is a sitting and an active Member of Parliament, specifically the Senate, up to until August 8, 2017, hence a State officer and is therefore ineligible to contest the gubernatorial seat,” said Mr Walongo.

The petitioner said that the decision to seek the governor’s seat directly breaches the Constitution.

Omar, who appeared in person before the court yesterday, said the petition had been brought in bad faith and was targetting him alone out of the 47 senators.

Omar sought more time to file a replying affidavit challenging the petition which, he said, affects all senators and MPs.

He said the petition should be heard and determined after the election.

“I am lost why the petitioner picked on me out of the 47 senators. I need more time to file a replying affidavit because I believe the matter raises constitutional matters that addresses the 47 senators and 293 MPs,” said Omar.

The lawyer representing the IEBC said that there are other avenues to address the matters raised by the petitioner.

“The process of nomination of MPs and senators is elaborate and there is political party tribunal, IEBC tribunal and High Court and all this process ought to be exhausted,” said the lawyer.

The petitioner’s lawyer David Odour said the petition should be heard before the General Election because the matter raises heavy constitutional issues, including breach of the Constitution.

He said it will be a waste of public resources when an ineligible candidate is allowed to run and is voted to office because the elections will be declared as a nullity.

Odour said there is no time limit on cases touching on the Constitution.

“If the elections were to happen with the gazette notice as it is now, it will be a waste of public resources when ineligible candidate is voted. It means elections will be an a nullity,” said Odour.