Court thwarts Kivuitu pay plea

January 15, 2009 12:00 am

, NAIROBI, Kenya, Jan 15 – The woes afflicting officials of the disbanded Electoral Commission of Kenya (ECK) continued unabated on Thursday, after the High Court declined to compel the government to continue paying their salaries.

The Commissioners had moved to court on Wednesday following ongoing efforts to set up the Interim Independent Electoral Commission.

Their lawyer Kibe Mungai had also wanted the court to bar the Parliamentary Select Committee (PSC) on constitution review from nominating members to the Interim Independent Electoral Commission (IIEC) , arguing that it lacked the powers to undertake the duty.

Justice Joseph Nyamu however pointed out that the relief sought by the Commissioners lay in the determination of a constitutional petition which was filed in November last year and is still pending in court.

The petition was referred to the Chief Justice last December, but he has yet to appoint a three-judge bench to hear the matter.

The ECK was disbanded before the case was heard, after the Constitution of Kenya Amendment Bill became law on December 29.

In the latest case that was filed on Wednesday, former ECK chairman Samuel Kivuitu and his ousted fellow commissioners argued that they were entitled to their salaries, since the Commission was not disbanded in accordance with the Constitution.

The ECK was disbanded through enactment of a new law.  When Commissioners filed the case last year, the constitution was categorical that “a member of the Commission shall be removed from office by the President if the question of his removal from office has been referred to a Tribunal.”

They also contended that the Parliamentary Select Committee on Constitution review was only formed to assist the National Assembly in its mandate.

“The PSC was established under the review Act to assist Parliament.  Being a statutory body, it cannot perform any other function without amendments to allow it perform constitutional functions,” Mr Mungai told the court on Thursday.

He also said that the security and vehicles that had been assigned to the Commissioners had already been withdrawn.

Mr Mungai moved to court on the same day the PSC announced that the Interim Independent Electoral Commission would be established by mid February.

The chairman, Abdikadir Mohamed, was quoted saying that a list of commissioners would be presented for Parliament’s approval a week after the January  30 application deadline.


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