The Wiper Party has confirmed that it submitted a letter to the electoral agency nominating Kisauni MP Ali Mbogo as its gubernatorial candidate for Mombasa County.
The party now backs former Nairobi governor Mike Sonko’s candidacy, accusing the Independent Electoral and Boundaries Commission of failing to act on its letter.
Through lawyer Eunice Lumallas, Wiper told the court on Wednesday that it forwarded Mr Mbogo’s name on June 24, but there had been no response, acknowledgement or gazettement of the names it submitted, nor was it asked to present any documents for the nominees.
“At 10.07 today (Wednesday), we received a letter from IEBC purported to have been drafted on June 30, indicating the names submitted were time-barred,” said Ms Lumallas.
She faulted the IEBC dispute resolution committee for giving the party 72 hours to get a different candidate, terming it irrational.
Ms Lumallas was submitting before a three-judge bench comprising justices Olga Sewe, Stephen Githinji and Ann Ong’injo during the hearing of a petition by Mr Sonko, who has sought an order quashing a decision by IEBC’s Mombasa county returning officer Swalha Ibrahim and its dispute resolution committee disqualifying him from the Mombasa governor race.
The lawyer defended Mr Sonko’s petition, saying he was not disqualified on the basis of impeachment, but rather on allegations of submitting his documents out of time.
Ms Lumallas argued that the law does not require a person seeking to contest governorship to have a degree but to have the qualifications of a Member of the County Assembly.
“The Constitution does not require one to have a degree,” said Ms Lumallas, adding that Mr Sonko should be allowed to contest and voters let to decide.
But through lawyer Edwin Mukele, the IEBC said it had a duty to receive the letter from Wiper, but that did not mean its proposed candidates had been cleared as there are processes to be followed.
Mr Mukele argued that an order sought by Mr Sonko to bar Wiper from nominating another candidate other than himself has been overtaken by events as the party had nominated another candidate.
According to the affidavit by Ms Ibrahim, Wiper wrote to the electoral agency in an attempt to comply with the judgment by the commission’s dispute resolution committee, which dismissed Mr Sonko’s complaint challenging his disqualification and gave the party 72 hours to nominate another candidate.
“The said letter was forwarded to the third respondent (IEBC) together with the certificate of nomination for both Ali Mbogo and the petitioner (Mr Sonko),” Ms Ibrahim states in her affidavit.
Mr Mukele, who said Wiper had been given 72 hours but failed to comply, also argued that Mr Sonko did not comply with the requirements that he provides his original degree with its certified copy.
Mr Mukele added that the IEBC found that Mr Sonko did not meet the requirements of integrity and leadership.
He urged the court not to interfere with IEBC’s duty to ascertain whether one has been removed from office, saying the jurisdiction to determine the qualifications of an aspirant lies with IEBC.
“IEBC and its county returning officer for Mombasa acted within the law in declining to clear the petitioner,” argued Mr Mukele.
For its part, the Ethics and Anti-Corruption Commission told the court that in the event Mr Sonko’s petition succeeds, the effect would be reversing his status from disqualified to qualified.
Through lawyers, led by Wilfred Nyamu and Dr John Khaminwa, Mr Sonko wants the court to allow his petition. The court will deliver its judgment on July 15.
“The challenge is whether that makes him eligible,” said lawyer Philip Kagucia for the anti-corruption agency arguing that the former Nairobi Governor is not eligible.
Mr Kagucia added that it is possible for a candidate to be qualified to contest for a seat but remain unsuitable to hold the office.
Through his lawyers led by Wilfred Nyamu and Dr John Khaminwa, Mr Sonko urged the court to allow his petition arguing that Ms Ibrahim had a duty to investigate if there was a pending appeal (relating to his impeachment) at the Supreme Court since IEBC is also a party to it.
He argued that Ms Ibrahim ought to have called the electoral agency’s legal department to confirm if there was an appeal at the Supreme Court.
Mr Nyamu further said that Mr Sonko complied with the requirements set out by IEBC to contest for the position of Governor.
He argued that the requirement that a degree certificate ought to have been certified by the issuance institution is not applicable to Mr Sonko.
Dr Khaminwa told the court that if they lock him (Mr Sonko) out of the race for Mombasa gubernatorial seat, they will not be preserving democracy.
“We should not shut out Sonko, it will not be preserving democracy,” said Dr Khamiwa who wondered what had changed yet he (Mr Sonko) had been cleared to contest in 2017.
In his petition, Mr Sonko also wants an order issued against the Wiper Democratic Movement party from nominating any other candidate for the position other than himself.
Mr Sonko says that failure by the county returning officer to receive his original degree certificate and its certified copy was intentionally created to delay its submission past the timelines indicated.
The former Nairobi county boss also wants a declaration that he is duly qualified as a candidate for the seat of Governor Mombasa in the August 9 polls.
