Three Mombasa residents have filed a petition seeking to compel the electoral agency to conduct postponed elections in eight electoral areas on Tuesday next week or not later than August 30.
They also want a declaration that the decision of the Independent Electoral and Boundaries Commission (IEBC) and its chairperson Wafula Chebukati to postpone the elections from Tuesday next week to unspecified date is illegal and unconstitutional.
IEBC postponed gubernatorial elections in Mombasa and Kakamega counties and parliamentary elections in Kitui Rural, Kacheliba, Pokot South and Rongai constituencies.
In their petition filed under Certificate of Urgency at the High Court in Mombasa, Messrs Thani Mohamed, Moses Aran and Kevin Nzuki argue that they have been disfranchised by IEBC’s decision to postpone the elections for the second time.
The petitioners claim that IEBC and Mr Chebukati have not indicated that there was a breach of peace in Mombasa or the other seven electoral areas and that the Ministry of Interior is unable to offer security to warrant postponement of the elections as a result of alleged intimidation of staff at the national tallying centre.
Through lawyer Willis Oluga, the petitioners also argue that by postponing the elections for governor in Mombasa, the electoral agency has allowed the current governor and the county executive to continue being in office beyond their term.
“Since the term of the current governor and the county executive has expired, the county government of Mombasa as constituted cannot make any executive decision thereby impeding delivery of service to the people of Mombasa,” part of the petition states.
The petitioners also say that IEBC and Mr Chebukati’s action to postpone the elections was driven by malice and desire to achieve ulterior motives rather than protection and observance of the law.
They claim that the electoral agency’s objective in the first postponement was to achieve low voter turnout in Mombasa and the other electoral areas in order to swing the presidential vote in favour of Mr Chebukati’s preferred candidate.
“Indeed the voter turnout in Mombasa for the purpose of the presidential vote was very low compared to other counties where elections were not postponed,” the petitioners say.
They also claim another objective was to fight back following a dispute which ensued after the declaration of the presidential results where IEBC commissioners were split; with four of them accusing Mr Chebukati of failing to conduct tallying and verification of the presidential election results in accordance with the law.
“Mr Chebukati should not be permitted to punish the petitioners, voters in Mombasa, Kakamega county, Kitui Rural, Kacheliba, Pokot South and Rongai constituencies and Nyaki West and Kwa Njenga wards because of the reasons cited by IEBC and Mr Chebukati which are outside the law,” argue the petitioners.
They also argue that the Elections Act does not permit the postponed of elections because of errors on the ballot papers.
The petitioners want the Ministry of Interior compelled to declare the date scheduled for the postponed elections as a public holiday in order to give voters in those areas an opportunity to excise their democratic rights without fear of being victimised for absence from their places of work.
According to the petitioners, the Ministry of Interior is mandated to ensure safety and security in the country during elections and at all times thus the electoral agency fears that its staff are being harassed and intimidated can be easily handled by the ministry so that it can conduct the elections next Tuesday or on a near date.
“The Ministry of Interior can easily address alleged fears raised by IEBC and Mr Chebukati regarding safety and security of IEBC staff although the fears are insincere because they do not affect the staff in the eight electoral areas where the elections were postponed,” the petition states.
They also argue that the electoral agency has made the elections for Mombasa county governor irregular and unpredictable and have created unwarranted restrictions on their right and right of voters in Mombasa to regular elections.
The petitioners also want an order issued compelling the Ministry of Interior to ensure the elections for governor in Mombasa is conducted in a safe and secure environment by providing adequate security and declaring August 23 or a date appointed for the elections as a public holiday.
