Thirteen ODM rebels have dared the party to expel them after ODM threatened to deregister them for defecting to President Uhuru Kenyatta’s Jubilee Party.
The leaders said on Wednesday that they have not been served with notices to show cause why they should not be deregistered.
Through their lawyer Kioko Kilukumi, the leaders said they are constitutionally entitled to freedom of association and to make political choices.
“It is our instructions that none of our clients have conducted themselves in a manner which can trigger section 14 (5)(c) of the Political Parties Act. Accordingly, they cannot be deemed to have resigned from ODM. There is no factual or legal basis for issuance of notice to the Registrar of Political Parties,” a statement from the lawyer read.
The leaders say ODM has not exhausted internal party disputes resolution mechanisms “before engaging third parties”, adding they are willing to appear before the party disciplinary committee.
Kilukumi added: “Additionally, ODM is under legal obligation to comply with the procedure set out in its constitution before sending any notices to the Registrar of Political Parties. Our clients are willing and ready to appear before any properly constituted party organ to address any issues of alleged defection.”
On Tuesday, ODM said the leaders had until midnight to respond to warning letters sent to them on September 20.
The party had warned the defectors they will be expelled and their seats declared vacant.
The members are:
- Ukur Yatani – Governor, Marsabit
- Salim Mvurya – Governor, Kwale
- Zainabu Chidzuga – MP, Kwale County
- Joash Maangi – Dep. Governor Kisii County
- Steven Kariuki – MP, Mathare
- Mpuru Aburi – MP, Tigania East
- Gideon Mung’aro – MP, Kilifi North
- Mustafa Iddi – MP, Kilifi South
- Cyprian Kubai -MP, Igembe Central
- Isaac Mwaura – Nominated MP
- James Rege – MP, Karachuonyo
- Samuel Arama – MP, Nakuru Town West
- Rtd. Maj. John Waluke – MP, Sirisia
Enforcement of the expulsion may be problematic as the Constitution requires individuals to write to the Speaker declaring they have resigned from their parties — something most defectors said they will not do.
Article 103 of the Constitution gives the conditions under which the seat of an elected MP can fall vacant.
One is if the person is deemed to have resigned from the party that sponsored him or her to Parliament.
The Political Parties Act states that a party whose member is deemed to have resigned shall, in accordance with the party’s constitution, notify the Registrar of the decision within seven days.
Members are deemed to have resigned if they form or join in the formation of another political party, join another party, publicly advocate formation or promote the ideology, interests or policies of another party.
The Act also says a party member may only be expelled for infringing on the party constitution, after being given a fair opportunity to be heard in accordance with internal dispute resolution mechanisms.
“A person who suppresses or attempts to suppress any lawful political activity of another person commits an offence and shall, on conviction be liable to a fine not exceeding Sh1 million or to imprisonment for a term not exceeding two years or to both,” the Act says.