Two senators lose seats over nomination

Deputy President William Ruto greets nominated Senator Linet Kemunto on arrival at JKIA from The Hague on Thursday. Senators Harold Kipchumba and Linet Kemunto, who are both disabled and were nominated by their parties to represent people with disabilities, were kicked out by Lady Justice Rose Ougo, who ruled that they were not validly nominated. PHOTO/WILLIAM OWERI 

By PAUL OGEMBA
More by this Author

Two nominated senators Thursday became the first lawmakers of the Upper House to lose their seats through a court petition.

Senators Harold Kipchumba and Linet Kemunto, who are both disabled and were nominated by their parties to represent people with disabilities, were kicked out by Lady Justice Rose Ougo, who ruled that they were not validly nominated.

Ms Kemunto is blind and was nominated by the National Alliance (TNA) while Mr Kipchumba is physically disabled and was nominated by the Orange Democratic Movement (ODM).

In her judgment, Justice Ougo said the electoral commission had no mandate to substitute nominees that were in the first list with names listed afterwards, and ordered the commission to gazette Mr Ben Njoroge and Ms Goldliver Omondi as the duly nominated senators.

“The nomination of Mr Kipchumba and Ms Kemunto contravened provisions of the Constitution and the Elections Act. It was wrong for IEBC to strike a balance; their role was to provide a framework in the process by accepting party lists and not substituting the names,” she said.

The judgment was, however, a sharp contradiction of a verdict she delivered in a similar dispute in which she upheld the nomination of Senator Naisula Lesuuda.

She also contradicted herself by ruling that Mr Kipchumba and Ms Kemunto were validly nominated by their parties after complying with all requirements only to go ahead and nullify the nominations.

“I appreciate that both applied for nominations and any questions about their eligibility would have been raised before the elections. Claims that Ms Kemunto was not a member of TNA, and that Mr Kipchumba participated in the ODM primaries cannot hold water,” she said.

In the Ms Lesuuda’s case, Ms Lydia Mathia had claimed that she was short-changed by IEBC since her name was above Ms Lesuuda’s in the list, and that the commission had no power to alter the list.

Justice Ougo, however, ruled that the IEBC had the mandate to alter the list to conform to provisions of the Constitution and dismissed the petition.
“Although Ms Mathia was number three on the TNA list of nominees, the IEBC was justified in gazetting Ms Lesuuda, who was number five on the list to strike a balance on regional representation,” she ruled.

It was the same scenario with Ms Kemunto and Mr Kipchumba’s petition. The petitioners, Mr Njoroge and Ms Omondi, claimed that they were both listed on top of their respective party lists for nomination, and that IEBC had no mandate to short-change them with those who were listed second in the party lists.

Justice Ougo agreed with their arguments, ruling that the question of regional balance did not apply in their situation, and that their special category of people with disabilities did not apply.
“There is no special disability since no disability is superior to another,” she ruled.

According to the judge, the nomination was to be based on proportional representation based on the list presented by the parties, and that the action of the commission to overlook the first name was a violation of Electoral and Political Parties Acts.

“The mandate of the commission was limited; theirs was to ensure statutes are followed and respect the will of the people,” she said.

She also directed the IEBC to pay Mr Njoroge and Ms Omondi Sh2 million to cater for the cost of the petition.

Justice Ougo further declined to temporarily stop execution of her orders, directing that the IEBC immediately publish a fresh gazette notice with Mr Njoroge and Ms Omondi as nominated senators.

Additional reporting by MAUREEN KAKAH
mkakah@ke.nationmedia.com