Voter and NGOs Challenge Supreme Court’s Nullification of Magarini MP Election
A voter from the Magarini constituency and two NGOs are seeking to reverse the Supreme Court’s ruling that nullified Harrison Kombe’s election as MP.
Jackline Kabibi, Tribeless Youth, and Siasa Place have applied to the High Court, requesting that no action be taken to declare the seat vacant and hold a by-election until the IEBC is reformed.
The applicants seek to prevent the Attorney General and the Speaker of the National Assembly from declaring the seat vacant until the IEBC has enough commissioners to oversee the election.
They are asking for a stay of the orders until their petition, which highlights the IEBC’s lack of sufficient commissioners to conduct the by-election or review boundaries within constitutional timelines, is heard and determined.
“The petition is also based on the Supreme Court’s order directing the IEBC to declare the Magarini Constituency seat vacant and hold by-elections,” according to court documents.
The Supreme Court had confirmed the annulment of Mr. Kombe’s election.
The High Court had previously annulled Mr. Kombe’s election due to irregularities affecting the results, a decision upheld by the Court of Appeal and then appealed to the Supreme Court.
The IEBC and the Kenya National Commission on Human Rights (KNCHR) have been listed as interested parties in the case.
The petitioners argue that without commissioners, the IEBC cannot address these issues, creating an unconstitutional situation that violates the Constitution.
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They contend that declaring the Magarini MP seat vacant without commissioners to conduct the by-election could leave the seat unfilled indefinitely, leaving the electorate and residents without representation.
The petitioners seek a declaration that without at least three commissioners, the IEBC lacks the quorum to act on the notice of vacancy conduct the by-election within the constitutional 90-day timeframe, or review boundaries.
They also claim that the IEBC’s failure to reconstitute itself for over a year has infringed upon voters’ constitutional rights and their right to recall their representatives.
Ms. Kabibi, Tribeless Youth, and Siasa Place assert that Article 89 of the Constitution requires the IEBC to review constituency names and boundaries every eight to twelve years.
They argue that the respondents ignored the KNCHR’s advice in February about the impending expiration of the constitutional deadline for the review in March, despite the IEBC not being fully constituted to carry out the task, leading to a constitutional crisis.
The petitioners argue that the current state of the IEBC cannot ensure a free and fair election in Magarini, as it lacks the minimum number of commissioners to lawfully execute the High Court’s order.
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They argue that the incomplete IEBC cannot act on the Speaker’s notification of vacancy within 21 days as required, nor can it hold a by-election within the 90-day limit.
The petitioners claim that the delayed boundary delimitation violates political rights under the Constitution.
They also argue that the delay in boundary review affects fair representation and could lead to the marginalization and disenfranchisement of certain groups if not conducted properly.
Additionally, they argue that the delayed boundary review disrupts the principles of devolved government outlined in the Constitution.
“Since population data is crucial for revenue distribution under the Constitution, the delayed boundary review violates Article 201 on equitable revenue sharing,” the petition states.
The petitioners also seek a declaration that the KNHCR’s advice and recommendations on matters within its jurisdiction are constitutionally binding.
Finally, they request a structural injunction directing the respondents to promptly reconstitute the IEBC and report to the court within 45 days on their compliance with the order.
Voter and NGOs Challenge Supreme Court’s Nullification of Magarini MP Election