Lawyers differ over sections of law and IEBC Act in election petition

By Willis Oketch

Kenya: Lawyers representing two politicians in the Mombasa governor’s electoral petition have differed over constitutionality of sections of the Independent Electoral and Boundaries Commission (IEBC) Act.

They gave different interpretations of whether the IEBC Act is in conflict with the Constitution on the matter of when poll losers should file petitions.

They also differed on the meaning and interpretation of a High Court ruling in Mombasa last month, which allowed politician Suleiman Shahbal to proceed with the petition despite finding that he had filed it 34 days after the declaration of results in March this year.

Justice Fred Ochieng of the High Court in Mombasa found that the IEBC Act was in conflict with the Constitution and that Shahbal relied on the Act but concluded that Shahbal could not be punished for the conflict of laws. Yesterday, Mombasa Governor Hassan Ali Joho (pictured) represented by lawyers Ahmednassir Abdulahi and Mohammed Balala and Shahbaal’s lawyer Gikandi Ngibuini sharply differed in court over when the 28-day period should start being counted.

The Constitution says petitions should be filed within 28 days after the declaration of results, while the Act says losers should petition within 28 days after publication of winners.

Balala said the counting should start immediately after election results has been announced while Gikandi insisted it should start when IEBC has gazetted their names.

Balala said the Gazette notice, which was published by the IEBC after the March 4, General Election was meant to show only the winners of various seats.

He told the Court of Appeal sitting in Malindi that it was the winners who are published in the gazette notice but not the result of the election held in the 290 constituencies in the country.

Joho has gone to the Court of Appeal seeking the court to overturn Justice Ochieng’s ruling.

Justice Ochieng declined to strike out the petition on grounds Shahbal relied on IEBC Act in filing the petition