Judge clears the way for Makueni poll despite ballot hitch

The High Court on Wednesday gave the electoral commission the green light to go ahead with the Makueni by-election using the ballot papers it has already printed.

The by-election to fill the seat left vacant by the death of Senator Mutula Kilonzo on April 27 will be held on Friday and parties had been given until Wednesday to campaign for the seat.

Mr Mutula Kilonzo Junior of the Wiper Democratic Party is among the candidates in the race to fill the seat left vacant by his father’s death.

However, his name was not on the ballot papers printed in London and will be superimposed after a Nairobi High Court cleared the Independent Electoral and Boundaries Commission (IEBC) to carry on with the by-election using the ballot papers that it already has.

Mr Justice Richard Mwongo ruled that election laws did not allow patched-up ballot papers like what the commission has proposed to use, but it is in the interest of the public that the by-election should proceed.

Deadline expires

Election laws must be followed strictly, Mr Justice Mwongo said as he allowed the election to proceed in the manner preferred by IEBC to prevent a constitutional crisis. The supreme law requires that a by-election be held within 90 days of a seat falling vacant. In the Makueni case, the deadline expires on Friday.

“The courts hands are tied. Ninety days expire on 26th July 2013. The court cannot alter the wishes of the people of Kenya by extending the by-election date to allow for reprinting so as to facilitate the production of ballot papers that strictly comply with the regulations,” the judge said. “Further, if the election is not held on 26th July 2013, then the vacancy created in the Senate seat of Makueni cannot be filled without a constitutional amendment. This will lead to a constitutional crisis which this court is not prepared to facilitate”.

After weighing his options, the judge said that since political parties and candidates will have agents at every polling station to check on ballot papers, the by-election should proceed.

“I prefer to err in favour of allowing further opportunity for competitive elections rather than for a constitutional hiatus,” he said.

Earlier, the Wiper Democratic Party had submitted that it was not prepared to participate in the Makueni by-election if the name of its candidate would not appear on the ballot paper in a printed form.

The party’s lawyers, led by Mr James Orengo, had told the court that allowing the by-election with ballot papers in which Mr Kilonzo Junior’s name was manually embossed would be a bad electoral precedent.

The court was hearing a petition filed by the party on Tuesday to compel IEBC to print fresh ballot papers with Mr Kilonzo’s name.

“That kind of a ballot paper raises questions on whether it is a valid ballot paper,” Mr Orengo said.

IEBC’s lawyer, Mr Muhoro Kimani, absolved the commission from any wrong doing and said that it had complied with a judgement requiring that Mr Kilonzo’s name be on the ballot paper.

“Mutula Kilonzo Junior’s name will be in the ballot paper with all security features in tandem with all the other security features of all the other candidates,” he said.

A column was left on the ballot paper for the inclusion of the name of Wiper’s nominee and the slip containing Mr Kilonzo’s name and photograph is of the same quality as the printed ballot paper and contains the same security features, the lawyer said.

“The name of Mutula Kilonzo Junior will be the fifth and at the bottom of the ballot paper as it was the last to be gazetted.”

The Wiper party failed to show the prejudice that it would suffer if the name is included in the manner preferred by the commission, the lawyer said, and asked the court to allow the commission to proceed with the by-election with the ballot papers it is already printed.

The IEBC director for elections, Ms Immaculate Kassait, also told the court that the commission’s printer would require an additional week to print fresh ballot papers. That would mean that the election must be postponed, an impossibility in law, she added.

The UK firm had warned that it would not be in a position to deliver the ballot papers in time unless it went to press by July 17. By that time, a petition challenging the eligibility of Ms Kethi Kilonzo to vie for the seat was still being heard.

Ms Kilonzo, who is also Mr Kilonzo’s sister, was disqualified after the court ruled that she was not a registered voter.

The court also gave Wiper half a day to pick a replacement and the party gave Mr Kilonzo Junior a direct nomination. By that time, IEBC had placed its order with the UK printer, Smith and Ouzman.

Both the ballot papers and the stickers with Mr Kilonzo’s name are expected in Nairobi on Thursday.

On Wednesday, IEBC summoned its staff from Makueni county to train them on how to stick a strip on the 300,000 ballot papers.

Makueni has 914 polling stations.

Reported by Paul Juma and Isaac Ongiri