Why Magara wants Speaker to rescind ruling

Former South Mugirango MP Omingo Magara has written to House Speaker Kenneth Marende asking him to revoke the declaration that the seat is vacant.

Mr Magara is hanging by a legal thread in the hope that the Speaker would set a precedent by putting aside his own decision to declare the seat vacant following an election petition loss.

Mr Magara is pleading with the Speaker to revoke the notice “so as to be fair to the law”. He is basing his argument on what he calls legal technicalities touching on voter registration in the constituency.

He argues, through his lawyers Katwa and Kemboy Advocates that the Speaker should not have declared the seat vacant until the IIEC was fully prepared for the by-election. The lawyers claim Mr Speaker’s move could “jeopardise” IIEC’s preparations for the coming by-election.

On January 15, Mr Marende declared the seat vacant after Mr Magara lost an election petition on December 17.

Kisii High Court Judge Daniel Musinga nullified the ODM politician’s election in favour of the petitioner Manson Nyamweya.

The Speaker, said to be in Mombasa, was not available for comment, but IIEC chairman Isaack Hassan said it was Mr Magara’s fresh move that appeared to jeopardise the by-election.

Mr Hassan, speaking to the Sunday Nation by telephone on Friday, said although the commission was also waiting to hear from Mr Marende over the issues the former MP has raised, he believed the electoral body could not be stopped from conducting fresh registration as well as speeding up the by-election.

When he declared the seat vacant, the Speaker gave the IIEC two months, from January 18 to prepare for the by-election. It must be held at the end of April, which is within the mandatory 60 days from the date the seat was declared vacant.

Mr Marende made the move three days after he had written to Mr Magara’s lawyers saying he was “giving due attention to all the issues” they had raised in an earlier letter to him dated January 11.

The lawyers had requested that the Speaker, even as he declared the seat vacant, should start counting the 60 days within which a by-election should be held, from January 6, 2010.

They argued after Mr Magara’s election was nullified, the outgoing MP soon lodged an appeal that sought to bar the Speaker from declaring the seat vacant. But, the lawyers argued, the matter could not move as the Court of Appeal had been on vacation until January 6.

In the letter dated January 18, Mr Magara’s lawyers argue the Speaker should have first allowed the IIEC to prepare for the by-election before declaring the seat vacant.

Should Mr Magara or any other candidate win, the outcome could still be challenged in court over alleged anomalies touching on voter registration in the constituency.

“We request that you allow us to petition you to revoke Gazette Notice so as to be fair to the law, the constituents of South Mugirango (together with their Parliamentary candidates) to the National Assembly and to your esteemed office,” Mr Kigen says in the letter copied to the IIEC and Attorney-General Amos Wako.