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The Nairobian

Wanjiru’s glory nullified, but should Kamanda get easy ride to Parliament?

Busia

By The Standard Business | Aug 09, 2010

BY WAHOME THUKU

The declaration of Bishop Margaret Wanjiru as Starehe MP on December 29, 2007 caught her main opponent Maina Kamanda by surprise. Mr Kamanda, the immediate former MP was sure of retaining the seat with 46,900 votes against Wanjiru’s 29,496. In fact, he was still holding the Sports minister’s portfolio.

The constituency attracted 17 parliamentary candidates. When results were announced, Wanjiru (ODM) had 29,496 votes, but Kamanda (PNU) had 28,601. Kamanda immediately filed a petition through his lawyer Kioko Kilukumi challenging Wanjiru’s election.

He listed irregularities against the Retuning Officer Manasseh Mugasia and the defunct Electoral Commission of Kenya. He accused the bishop of Jesus is Alive Ministries of bribing election officials, using her agents to intimidate other voters and causing violence.

Kamanda claimed Wanjiru commanded spiritual influence on her church faithful and they were coerced to vote for her. He argued Wanjiru knew she had lost the elections, hence she complained of rigging through the media.

He asked for a recount and scrutiny of all votes, and nullification of Wanjiru’s election. He also made a special prayer under Rule 4(3) of the National Assembly and Election (Election Petition) Rules, 1993, to be declared duly elected MP for Starehe. Kamanda and Wanjiru called eight witnesses each, mainly their agents.

Then presiding Judge Kihara Kariuki ordered for scrutiny and recount of the votes. Wanjiru appealed against the ruling, but lost because her lawyer Chacha Odera did not deliver the appeal documents on time.
The recounting was done for seven weeks, supervised by Nairobi Magistrate S Reich. It was established 49,310 votes had been cast for Kamanda and 34,874 for Wanjiru. Many documents were missing and boxes had been tampered with.

Open ballot boxes

Mugasia gave lengthy evidence. He told the court after the polls, the 204 boxes were taken to Nyayo National Stadium Gymnasium for storage under the custody of the Nairobi Election Co-ordinator Rita Mwera.

The returning officer was later called by Mrs Mwera to assist in moving the boxes to Industrial Area’s Government warehouse. Then he noted more than 100 boxes had been tampered with and some were open.

Later, in 2008, Mwera asked him to take the boxes to court. They were received by then Chief Magistrate (now High Court Judge) Aggrey Muchelule, who noted seals on 61 boxes had been broken and 15 opened.

Lawyer Kilukumi argued on the basis of the recount results, Kamanda should be declared as having been validly elected. He was in essence saying Starehe voters should not be called to a by-election.

He asked the court to accept the figures, saying there was no evidence in court Kamanda or his agents had accessed the ballots after the voting.

Lawyer Odera urged the court to reject allegations of bribery, intimidation and undue influence, as there was no credible evidence.

He argued Kamanda was then Sports minister under which docket the Nyayo National Stadium fell. He was better placed than Wanjiru to access the ballot boxes.
At the onset, the judge ruled there was no merit in the claims Wanjiru used her spiritual influence on her church members and forced them to vote for her. There was also no evidence she intimidated voters.

The judge, however, acknowledged evidence of tampering with the ballot boxes. “It follows that the integrity of the documents cannot be vouched for,” he said. He ruled given that condition, it could not be ruled out that at some stage additional ballot papers may have been added into the boxes.
The court could not determine whether the results shown after the scrutiny were genuine. Justice Kariuki rejected allegations that Kamanda had been assisted by some people to access the ballot boxes.

“In the absence of that crucial evidence I cannot say with any degree of certainty whether tampering took place before or after the election,” he said.

Legal position

The court held that Wanjiru had not been validly elected MP for Starehe and nullified her election. But could it declare Kamanda automatic winner?

Kariuki said lawyer Kilukumi had overlooked Section 30(1) of the National Assembly and Presidential Elections Act, which requires the court to determine the question raised in the petition and certify its determination to the Speaker.

The lawyer had also overlooked Section 44(1) (a) of the former Constitution, which states: “The High Court shall have jurisdiction to hear and determine any question whether a person has been validly elected as member of the National Assembly.”

The judge upheld the legal position established in previous petitions that the power conferred on the court was only to establish whether a person has been validly elected to the National Assembly. And that could only be the person declared winner by the returning officer after the polls.

In this case, the court could only determine whether Wanjiru was validly elected. There was no other question contemplated by Section 44(1) (a) of the constitution, the judge ruled. Kariuki could only make that determination and advise the Speaker accordingly.

“There is no power whatsoever for me under the law to go further and order that the petitioner is the person who should have been declared the MP for Starehe,” he added.
Besides, Kamanda had claimed the election was flawed. “I must add that a flawed election cannot produce a legitimate result,” he added.

Hence, the court rejected the prayer to declare Kamanda winner. It also ordered the returning officer and the ECK (now IIEC) to pay half of Kamanda’s costs of the petition.
The seat is yet to be declared vacant and Wanjiru has stated she intends to appeal.