Former Prime Minister Raila Odinga and former Vice-President Kalonzo Musyoka have been locked out of a possible comeback to any legislative assembly through nominations.
A three-judge bench of the Court of Appeal declared Section 34 (9) of the Elections Act, which allowed the nomination of failed presidential and deputy presidential candidates to Parliament, unconstitutional.
Justices Festus Azangalala, Patrick Kiage and Jamila Mohammed dismissed an earlier ruling by Justice David Majanja, which upheld nomination of presidential candidates to Parliament.
Justice Majanja, they ruled, misdirected himself in his interpretation and treatment of the question of special interest groups.
The 10th Parliament had amended the Elections Act to give a lifeline to presidential candidates and their running mates who lost in elections.
According to Section 34 (9) of the amended Act, any party list may contain a name of any presidential or deputy presidential candidate nominated for an election.
Yesterday, the court described this change as ‘‘a violation to all reason and logic of the rights of the marginalised by arbitrary superimposing well-heeled individuals in the nomination list to the disadvantage of the marginalised’’. It said MPs violated the Constitution in making the change to suit their friends.
“It cannot be open to any state organ to act in a manner that violates the Constitution. The doctrine of parliamentary supremacy when it legislated as it pleased is now of only historical significance and it is only the Constitution which can now claim supremacy,” they said.
The ruling affects Mr Odinga and Mr Musyoka, who have been under pressure from a section of their party members to consider joining either the National Assembly or the Senate. However, the two leaders have repeatedly denied claims they intend to rejoin Parliament.
Also locked out are former deputy prime minister Musalia Mudavadi, his running mate in the past elections Jeremiah Kioni, former Gichugu MP Martha Karua and her running mate, former Gatanga MP Peter Kenneth, Prof James ole Kiyiapi, Paul Muite and Abduba Dida.
The ruling effectively locks out the candidates from legislative assemblies for at least five years unless they win a seat through a by-election.
The appeal was filed by the Commission on the Implementation of the Constitution against the ruling by Justice Majanja in which he declared that party lists for nomination can contain names of the presidential and deputy presidential candidates.
The CIC argued before the Appellate Court that the judge made a mistake since the clause was inconsistent with provisions of the Constitution, which guarantees nomination of disadvantaged and marginalised groups to political seats.
The judges upheld the arguments, ruling that the Constitution intended that marginalised groups be beneficiaries of a more inclusive political order.
The presidential and deputy presidential candidates, they said, were not contemplated by the Constitution to be categorised as “special interest groups” and that it did not matter whether they are the leaders or vision bearers of their political parties.
“If they be what they are said to be, there really is no existential risk of their career or that of their parties to be feared from their absence from the benches and floors of legislative assemblies,” the judges said.
They added that Parliament’s failure to enact laws, which would protect the political rights of marginalised groups, meant that it was up to the court to take up the mantle.
The judges faulted Justice Majanja’s faith in political parties to adhere to the provisions, ruling that they did not share the faith he placed on parties to define for themselves what “special interest groups” should be.
“Search an approach was plainly wrong since a history of practice of nomination to Parliament shows that this well-intended methodology for inclusion for those outside of the circle were perennially abused to bring in persons other than those intended to benefit,” the judges said.
They ruled that the youth, persons with disabilities and workers are the only ones that can fall in marginalised groups since they are the natural underdogs and are likely to be elbowed outside the political field if the presidential candidates are nominated to legislative assemblies.-nation.co.ke
