The Supreme Court verdict that dismissed the nullification of Othaya MP Mary Wambui’s election not only gave her another political lifeline but also underlined her survival instincts.
Having won the seat last year despite spirited campaigns against her by those in power at the time, Wambui again showed her mettle. Not one to run away from controversy, Wambui was fighting perhaps one of the toughest battles for survival in the by- election campaigns and another to take back her seat from the courtroom.
Wambui’s court case also brought to the fore interesting scenarios with regard to the electoral law. At one point, eyebrows were raised when she appeared in the National Assembly despite the Court of Appeal judgement that had nullified her election.
She even made a contribution on the floor of the House, to the chagrin of the petitioner, who asked that she be cited for contempt for failure to obey a court order. It later emerged that a lacuna in the law had created a window for her to continue serving in the National Assembly and was advised by her lawyer to continue exercising her right as Othaya MP.
The Speaker clarified that he had not received any communication form the Court of Appeal that Wambui’s election had been nullified. Lessons were further learned when confusion arose on who between the Court of Appeal and the Independent Electoral and Boundaries Commission ( IEBC) was to issue the certificate of nullification.
Kenyans had expected a bruising battle in the by-election but that was not to be, thanks to the Supreme Court’s decision. Campaigns had hit top gear in Othaya and key candidates had been preparing for an explosive electoral battle in the constituency formerly represented by former President Mwai Kibaki until last year.
Wambui’s key competitor Peter King’ara had filed the case claiming that her election was marred by irregularities and massive electoral malpractices. Her party, The National Alliance (TNA), wanted her back in Parliament, and party chairman Johnson Sakaja is happy that she has bounced back to the House. “We had granted her an automatic ticket to contest the seat,” said Sakaja, probably oblivious of the fact that all was not running smoothly for Wambui and that she could not have had an easy sail.
From the resources available to her opponents, it had become evident that she could have needed massive financial backing to win back the seat. Wambui’s supporters and those of King’ara who was flying the Democratic Party (DP) flag, until the election was called off, had clashed over the Supreme Court decision.
The Supreme Court suspended the by- election to allow Wambui to argue her appeal against the decision by the Court of Appeal to consign her to the political cold and later upheld her objection, forcing IEBC to call off the planned by- election. Health Cabinet Secretary James Mwangi was booed for trying to credit Wambui for the upgrading of Othaya District Hospital when he visited the region.
King’ara had earlier gone to court, seeking an order for scrutiny and recount of the votes cast in the elections and a declaration that she was not duly elected. He also requested the court to find that he was the duly elected member of the National Assembly for Othaya constituency.
Wambui’s lawyer Cecil Miller had argued that the appellate court in Nyeri which had nullified her election had based its decision on matters that had not been canvassed before it and that the petition had been filed out of the deadline set the by the Constitution. But it was from Miller’s argument that the case had been filed out of time that saved the day for Wambui.
Miller cited another judgment that had been given by the Supreme Court in a petition involving Mombasa Governor Ali Hassan Joho, in which he had argued on the importance of timelines in the filing of electoral petitions.
“From the analysis above, and from a review of the principles in the Joho case as regards the settlement of electoral disputes, we are convinced that for the benefit of certainty and consistency, the declaration of invalidity must apply from the date of commencement of the Elections Act, that is, December 2, 2011,” said the full judge bench before handing the Othaya MP her political lifeline.
“After the Appeal Court upheld the decision to kick her out, it was upon the Supreme Court to overturn the decision and we kept on praying that it will be positive. But we had a good case, “Miller said yesterday.
It would have been interesting, however, to see how the Kibaki factor would have worked out if Wambui had lost the petition and the Othaya electorate been asked to recast their ballots.
According to Florence Kajuju (Meru Woman Representative), Wambui also benefited from immense backing of women MPs who supported her morally and financially. She revealed that Wambui had created considerable networks within the House, which supported her morally and financially.
“We felt very sad as women. If she had lost the case, it would have been a setback to us as women who feel disadvantaged in tern of affirmative action,” said Kajuju.
