Makueni Senate by election to proceed- court

Justice Richard Mwongo July 24, 2013 during the hearing of a case seeking to compel the electoral commission to print new ballot papers to accommodate the name of Wiper candidate Mutula Kilonzo Jnr. The judge ruled that the by lection will proceed as scheduled. JEFF ANGOTE  

By PAUL JUMA
Posted  Wednesday, July 24  2013 at  18:30

The High Court has cleared the way for the Makueni by-election after it ordered the electoral commission to conduct the poll using the ballot papers already printed.

Justice Richard Mwongo ruled that though the election laws did not allow patched-up ballot papers like what the commission had proposed to use, it was in the interest of the public that the election should proceed on Friday.

The election laws must be followed strictly, he held, but still allowed the election to proceed in the manner proposed by the Independent Electoral and Boundaries Commission (IEBC) IEBC to prevent a constitutional crisis.

The commission has held that it wouldsuperimpose the name of Wiper candidate Mutula Kilonzo Jnr on the ballot papers after he made a late entry into the race.

The judge noted that the Constitution requires that the by-election must be held within 90 days of the vacancy and that this expires on July 26.

Lawyer James Orengo for Mutula Kilonzo Jnr makes his submissions during the hearing of a case seeking to compel the electoral commission to print new ballot papers to accommodate the name of Wiper candidate Kilonzo Jnr. The judge ruled that the by lection will proceed as scheduled. JEFF ANGOTE

“The courts hands are tied. Ninety days expire on 26th July 2013. The court cannot alter the wishes of the people of Kenya by extending the by-election date to allow for reprinting so as to facilitate the production of ballot papers that strictly complies with the regulations.

Eagle-eyed agents

"Further if the election is not held on 26th July 2013, then the vacancy created in the Senate seat of Makueni cannot be filled without a constitutional amendment. This will lead to a constitutional crisis which this court is not prepared to facilitate.

“Weighing all the options available to the court and the best interest of the nation and of the people of Makueni, and noting that the parties and candidates will have agents at every polling station to check on ballot papers, and on strict compliance with electoral process, I will order order that the election shall proceed," said Justice Mwongo.

"The IEBC will conduct the elections in a fair manner and transparent and just manner in full glare of observers, eagle-eyed agents and the public. This will also diffuse the possibility of a potential constitutional crisis since at the end of the by-election, parties will have the fill opportunity to contest a petition.

"I prefer to err in favour of allowing further opportunity for competitive elections rather than for a constitutional hiatus,” the judge ruled.