Usawa Kwa Wote challenges party hopping rule in court

Murang’a Governor Mwangi Wa Iria’s political outfit, Usawa Kwa Wote party, has petitioned the High Court to quash statutory timelines that bar losers in party primaries from joining other parties.

In the case lodged under a certificate of urgency, the party says the law relied on by the electoral commission in publishing the timelines is discriminatory because it allows the same losers to contest as independent candidates.

“Section 28A of the Elections Act, 2011 is unconstitutional and unlawful, unfair and incompetent for reason that it is discriminatory against persons desirous of joining other political parties for purpose of participating in the General Election. It restricts and restrains them from so joining other parties but yet allows such persons to still contest in the elections as independent candidates,” says Usawa Kwa Wote.

The party wants the court to allow the return of party hoping that was eliminated in 2017 following the amendment of the Election Laws (Amendment) Act, 2017 which set the deadline of decamping to other parties at 120 days before a General Election.

Should the petition be allowed, Usawa party is among the upcoming and smaller parties that stand to benefit from a wave of defections from mainstream parties after the primaries planned for next month, which are the all-important precursor to the August 9 General Election.

The party urges the court to declare that the aspirants who will lose in the primaries can lawfully join other parties of their choice without restriction in law, even after submission of party membership lists to the electoral commission.

Equal in status

In its view, the status of an independent candidate is equal in status, profile, legal rights and available opportunities to those sponsored by political parties.

Hence, there should be parity of time and opportunity in law to all aspirants.

The Wa Iria party has sued the Independent Electoral and Boundaries Commission (IEBC) and the Attorney-General.

“To the extent that the provisions of the Elections Act and the gazette notices released by the IEBC create room for persons who loose in their respective party primaries or resign from their sponsoring political parties after the conclusion of party primaries to still participate in the general election as independent candidates, but deprives them [the] chance to join other parties within the same timeline, then such persons are denied their right to equal protection and equal benefit of the law,” reads the petition.

It adds that the aim of taming party hoping, through application of Section 28 of the Elections Act, denies political aspirants their freedom of association and infringes on their right to political participation.

Through the law firm of Muchoki, Kang’ata, Njenga & Company Advocates, Mr Wa Iria’s party says the disputed section of the law is unreasonable and unjustifiable as it curtails the right to change parties.

The petition is premised on Article 81(a) of the Constitution which provides that the electoral system will ensure compliance with the principles of freedom of citizens to exercise their political rights.

Gazette notice

IEBC issued a gazette notice on January 20, 2022 indicating the applicable timelines for compliance with the legal requirements.

One of the principal requirements is that all political parties are supposed to submit the party membership lists to the IEBC on or before April 9, 2022, being 21 days before the date of nominations.

“It follows that any person intending to participate in the next General Election scheduled for August 9, 2022 must, as a mandatory legal imperative, be a member of his or her preferred political party on or before the said date,” says Usawa party.

The timeline and schedule of statutory events leading up to the next General Election shows that such persons have no chance, forum or time to join any other political party after the stated date and participate in the general election including even in the event of failure in the party primaries which ought to be concluded and finalised before April 22, 2022,” reads the petition.