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CORD court battle holds lesson for political parties

By - WAHOME THUKU | July 20th 2013


KENYA: Kethi Kilonzo’s decision to appeal against a ruling by electoral officials to rescind her nomination certificate was an exercise in futility, legal experts say.

The city lawyer and the Wiper Democratic Party were challenging a decision nullifying her nomination to contest the Makueni County senate seat.

Hearings before the Independent Electoral and Boundaries Commission’s Disputes Resolution Tribunal sealed her fate when they unearthed proof of her irregular voter status.

Kethi’s admission that she used an expired passport and a photocopy of her national identity card to register as a voter at a polling station she could barely recall was the stroke that broke the camel’s back.

But even as Kethi finally exits from the Makueni by-election, investigations into the manner in which she obtained an allegedly stolen IEBC document still awaits her. The committee also ordered for investigation into the manner in which she had acquired the acknowledgement slip which the IEBC claims was stolen from their custody. Having dismissed her appeal against the findings of the committee in total, High Court judges Richard Mwongo, Weldon Korir and Mumbi Ngugi have in effect left the criminal investigations agencies free to probe how she acquired an acknowledgement slip which the commission claims was stolen from their custody.

Such criminal investigations against her could come with bigger repercussion than missing the Senate seat.

There has been no insinuation before the committee or the court that Kethi was culpable or involved in the alleged theft. But the process of investigating how the document left the IEBC will certainly be a nightmare not just for her, but to IEBC officials as well as the Wiper party leadership.

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Clears doubts

 The judgment also clears any doubts as to the constitutional mandate of the IEBC to determine electoral disputes before the polls, including the nomination of candidates. The claims before the High Court supported by CORD leader Raila Odinga and even by prominent lawyers was that the commission had acted as a judge in its own course.

 They argued that the Returning Officer (RO) who cleared Kethi was an official of the IEBC, which nullified the nominations.

The court upheld the legal position that the decision of the RO was subject to challenge before the commission. The implications of this, however, is that IEBC officials will in future be more vigilant and careful before clearing political party nominees for elective seats.

The decision by the judges to give WDP a chance to nominate another candidate was more than the party could bargain for.

 Even as it proceeded to the High Court, the party was aware that the chance of fielding Kethi as a candidate was slim, reason why it asked to be allowed to get a substitute.

Unqualified candidate

Under the Elections Act a party that nominates unqualified candidate commits an electoral offence and is liable to being barred from participating in the elections.

To Wiper supporters in Makueni the bigger shocker would have been in barring the party from nominating another candidate. The court, however, concluded that there was no evidence either that the party knew Kethi was not a registered voter.

“It means that voters will have a right to elect their candidate of choice through the political parties,” said the party lawyer Tom Kajwang.

He said Makueni voters had their mind made up and even with a week to the elections CORD would trounce their competitors.

The decision serves as a warning to all political parties to properly vet their nominees before presenting them to the IEBC and in particular to confirm their registration status with the electoral body. Just before the March 4 General Election, CORD almost made a similar error by clearing Bishop Margaret Wanjiru for the Nairobi Senate seat while her academic papers were questionable. On a political perspective, the Kethi drama has boosted WDP standing in the by-election.

 It gives their substitute candidate, Kethi’s brother Mutula Kilonzo Jr, a head-start even against stronger contestants.  Kethi still has a right to appeal to the Court of Appeal and even to the Supreme Court if aggrieved by the decision. She is, however, not expected to.

“We have 14 days to appeal and will decide on the way forward,” said her lawyer Jullie Soweto. The timeline to the mandatory July 27 deadline for the polls is unsuitable for any further appeals. Besides, her party has accepted the High Court decision and moved on.

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