NAIROBI, Kenya Sep 13 – The Independent Electoral and Boundaries Commission (IEBC) Dispute Resolution Committee will render its ruling Monday on retired footballer McDonald Mariga’s invalidated candidature for the November 7 parliamentary by-election.
Mariga who is keen to succeed Ken Okoth who succumbed to cancer in July in the mini-poll was dealt a major blow on Tuesday after the electoral agency, through the Kibra Returning Officer Beatrice Muli failed to clear him on grounds that he was not a registered voter, claims which have however, been disputed by his legal team.
During a hearing on Friday, Mariga’s lawyers led by Advocate Elisha Oguya pleaded with the Wafula Chebukati-led committee to correct the “erroneous decision” made by Muli who has been accused of violating Mariga’s constitutional rights.
Chebukati was flanked by Commissioners Abdi Guliye and Boya Mulu during the session in which the committee analyzed presentations from either party on the voter registration status of the Jubilee Party candidate.
Besides the legal team, Mariga was also accompanied by Langata MP Nixon Korir who has been a close associate to him and a strong critic to the ruling that locked him out of the race.
In her judgement which has since attracted sharp criticism from the ruling Jubilee Party, Muli opined that Mariga was not a registered voter hence was ineligible to contest in the Kibra parliamentary by-election that saw 23 candidates cleared to participate in the race while three were disqualified, including Mariga.
Oguya demonstrated to the committee that Mariga was indeed a registered voter, citing that he had been given an acknowledgement slip in Starehe Constituency when he registered as a voter on the August 26, with Oguya stressing that the slip was a legal document that proved that his’s client’s rights were violated.
“He is a registered voter and has a right to vie. The returning officer has violated provisions in the constitution on registration of voters because the applicant before you, has met the required qualifications as per the constitution,” Oguya said.
According to the IEBC Elections Act, Article 5(1)(b), registration of voters in the case of a by-election, shall happen between the date of the declaration of the vacancy of the seat and the date of such by-election.
Starehe Constituency Deputy Returning Officer Ismail Yassin confirmed to the committee that Mariga had registered as a voter on August 26.
“I can confirm to the commission that Mariga was registered on that particular day at five minutes past midday,” he said.
Oguya submitted that the Returning Officer failed to do due diligence in confirming whether Mariga was a registered voter and faulted her for relying on the 2017 voters register that he claimed was not updated.
“Even if it was an innocent mistake, we must admit that a mistake was committed, and it needs to be corrected. As a matter of fact, she was therefore under obligation to do a further obligation. She fell in error in law,” he said.
Jubilee Party lawyer Hillary Sigei maintained the party followed due process in nominating Mariga and argued that the registration process of voters was continuous and pleaded with IEBC to clear Mariga.
“This committee is where the Interested Party (Jubilee Party) is looking up to and calling upon to ensure that its right is not disfranchised by the decision which was in error by the Returning Officer. If you leave this decision to stand you would have taken away the right of the Interested Party to field its candidate and by extension you would have denied the people of Kibra an opportunity to exercise their right which is stipulated in the law for voters to elect the candidate of their choice,” he said.
Chebukati at one instance made reference the Makueni 2013 by-election that the complainant Kethi Kilonzo was ruled out of the race on grounds that she was not a registered voter and in fact had lied about being one, with the High Court upholding the decision of the IEBC Nominations Dispute Resolution Committee.
Mariga’s team however, protested that the court’s determination then would not be applied to Mariga’s case ostensibly because Mariga had depicted beyond any reasonable doubt that indeed he was a registered voter.
In her submissions, Muli categorically stated she was impartial, and her decision was simply informed by the law insisting that she was at no given point under pressure from external forces to invalidate Mariga’s bid.
“I do not even have the Chairperson’s (Wafula) number or any of the other commissioners. I simply followed the law. I have been doing this for the last 10 years and my conscious is clear on this matter,” she said.
Should Mariga be cleared, he will face off against ODM’s Imran Okoth, brother to the late Ken, and Aman National Congress’ Eliud Owalo who is the former presidential campaign manager for ODM leader Raila Odinga.
The race which has been touted to be a litmus test for the ‘handshake’ between President Uhuru Kenyatta and the former premier Odinga, is expected to be characterized by high octane politics reminiscent to the General Election.