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Lawyers say action by Ligale team lawful

Saturday November 20 2010

By EMEKA-MAYAKA GEKARA [email protected]

A section of lawyers have differed with Government Printer over his failure to publish the list of new constituencies.

The lawyers, including Gitobu Central MP Gitobu Imanyara, have accused the Government Printer of “misreading the law” saying he had no powers to decline publication of the list presented to him by Mr Andrew Ligale, the chairman of the Interim Independent Boundaries Review Commission.

But Mr Ligale, too, has come under heavy criticism for failure to give a comprehensive report capturing not only the new constituencies but also their boundaries as well as that of wards as required by Article 89 of the new Constitution.

Mr Ligale’s critics argue that the commission report confined itself only to constituency boundaries. Mr Mwenda Makathimo, a member of the commission, has accused Mr Ligale of putting the cart before the horse.

He claims Mr Ligale hired a team of professionals to draw the boundaries after releasing the controversial list. Questions have also been raised on Mr Ligale’s leadership of the commission owing to his links to the Orange Democratic Movement.

Article 88 of the new Constitution says a person is not eligible for if one has, at any time within the preceding five years, held office, or stood for election as a Member of Parliament or of a county assembly.

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In 2007, Mr Ligale unsuccessfully sought ODM nomination in a bid to defend his Vihiga parliamentary seat. He represented the constituency between 2002 and 2007.

Mr Andrew Rukaria, the Government Printer, has defended his position saying Mr Ligale did not follow procedure on publication of legal notices. According to Mr Rukaria, the legal notice on the constituencies was presented directly to the Government Press on November 15 contrary to the procedure.

“All legal notices must be forwarded through the Attorney-General for legal clearance for publication,” he said. As a result, he says, they needed to refer the notice to the AG for clearance “in accordance to common practice”.

However, Mr Rukaria says before they could forward it to the AG, they were served with a court injunction prohibiting the publishing of the new constituencies.

But Mr Ligale says the AG had approved gazettement of the constituencies in a letter dated November 13, 2010. Mr Imanyara and Mr Ken Ogeto say Mr Ligale “acted perfectly within the law.”Mr Imanyara stresses that constitutional obligation to gazette the new constituencies lies with the commission.

The two also argue that as an independent commission, the Ligale team cannot subject itself to the control or clearance of the AG or any other authority. “The requirement that legal notices be cleared by the AG applies to entities which are not independent,” says Mr Imanyara.

This is not the first time the Government Printer has been caught at the centre of controversy. In the run up to the vote on the proposed new law, top officials at the Government Press were accused of being used to alter the draft constitution.

Mr Ogeto, accuses the Government Printer of overstepping its mandate. He says the AG can challenge the gazette notice in court, but only after it has been published. Mr Imanyara shares the view. “The AG can only act that way after the gazettement of the list of the new constituencies.” The Imenti Central MP stressed that even the President has no space in the process.

Former Taveta MP Jackson Mwalulu says being a political exercise, the boundary review was bound to raise a storm. He is of the view that the list should be gazetted then debate re-opened with the aim of addressing emerging grievances.