, NAIROBI, Kenya, Apr 16 – The Court of Appeal has upheld the nomination of Naisula Lesuuda as a nominated Senator for The National Alliance (TNA).
Judges GBM Kariuki, Erastus Githinji, Mohamed Warsame, Daniel Musinga and Kathurima M’Inoti dismissed an appeal by Lucy Mathia on grounds that Independent Electoral and Boundaries Commission (IEBC) was right in amending TNA’s nomination list.
The court held that IEBC rightly replaced Maitha with Lesuuda to satisfy the requirements of the Constitution.
Maitha wanted the Court of Appeal to declare that IEBC had no mandate to alter the party nomination list. On April 11, 2013, Mathia filed a case seeking the nullification of Lesuuda’s nomination, but it was dismissed by High Court Judge Roselyne Ougo.
While rejecting the appeal, the judges said TNA erred in submitting the nomination list that did not conform to the Elections Act 2011 as well as Article 92 of the Constitution.
“A party list that is unconstitutional is not immune from inquiry, despite the provision that a closed party list cannot be amended,” the judges ruled.
The judges faulted TNA for failing to follow the party constitution and the Elections Act that seeks proportional representation of the marginalised communities in the Senate.
According to the judges, the electoral body was obligated to alter the nomination list to ensure that the Constitution was complied with.
“IEBC can reject a nominee if not qualified in accordance with the Election Act. A party list that is unconstitutional is not immune from inquiry, despite the provision that a closed party list cannot be amended,” the appeal judges ruled.
In her appeal, Mathia contended that ethnic diversity cannot override the democratic rights guaranteed in the Constitution.
She complained that IEBC chairman Isaac Hassan unilaterally directed that her name be removed from TNA’s nomination list of women members to the Senate.