Voter files petition over the delayed Banissa by-election

Attorney General Justin Muturi and the CEO of Independent Electoral and Boundaries Commission (IEBC) have been dragged to court over the delay of the Banissa constituency by-election in Mandera County.

A petition filed at the Milimani High Court yesterday by Banissa’s voter Brian Higgins Mbugua seeks the court’s intervention over the continuous delay by the IEBC, AG and the National Assembly to conduct a by-election in the constituency since March this year.

The seat fell vacant following the death of MP Kullow Maalim Hassan, who succumbed to injuries sustained after he was knocked down by a motorcyclist in Nairobi.

The MP died on March 29 and on April 18, the Speaker of the National Assembly declared the seat vacant.

Mbugua, through lawyer Adrian Kamotho, argued that by law, whenever a vacancy occurs in the office of a member of the National Assembly, the Speaker must, within 21 days of the vacancy, notify the Independent Electoral and Boundaries Commission (IEBC) in writing of the vacancy and a by- election must be held within 90 days.

The lawyer argues that by dint of Article 253 of the Constitution, the IEBC is a body corporate with perpetual succession, hence does not cease to exist, solely due to the absence of the chairperson or commissioners.

According to Kamotho, section 11 (A) (b) of the Independent Electoral and Boundaries Commission Act, mandates the secretariat to perform the day-to-day administrative functions of the Commission and implement the policies and strategies formulated by the Commission. This includes resolving casual vacancies that may arise from time to time between the general election cycle.

He says that due to the failure by the IEBC, AG and National Assembly to carry out the by-election within the mandated timelines, the people of Banissa Constituency have been deprived of, a person of their choice to represent their interests in the national assembly in line with Articles 94 and 95 of the Constitution.

Unless this honourable Court intervenes, the Petitioner, is apprehensive that in the absence of a representative in the national assembly, the voices and challenges of Banissa constituents will not be articulated and the historical political and economic challenges facing the people of Banissa constituency shall subsist unaddressed,” Kamotho seeks.

The petitioner wants the court to issue an order compelling the IEBC and its CEO Hussein Marjan to conduct a by -election in Banissa within 30 days.

“A declaration be and is hereby issued that the failure to conduct a by-election in Banissa Constituency within ninety days of the occurrence of the vacancy violates Article 101 (4) (b) of the Constitution,” Mbugua seeks.

Further, the petitioner wants the court to issue an order compelling the Selection Panel for the Recruitment of Nominees for Appointment as the Chairperson and Members of the Independent Electoral and Boundaries Commission appointed by President William Ruto on February 27 this year to submit the names persons of qualified to be appointed as chairperson and members of the electoral body the Head of State within two weeks.

The petitioner says that the failure of the selection panel for nominees to be appointed as IEBC commissioners to carry out its mandate has led to a constitutional crisis and as people of Banissa suffer for lack of political representation. The petition is pending hearing.