Legal landmine in Arati bid to replace Monda
Kisii Governor Simba Arati’s bid to replace ousted deputy Robert Monda has fallen into legal headwinds after the electoral agency declined to clear his nominee.
This is after it emerged that with the absence of a fully constituted Independent Electoral and Boundary Commission (IEBC), the nomination, approval and appointment of Dr Monda’s replacement can not take place.
Specifically, the absence of the IEBC chairperson slams brakes on the process as the nominee Elijah Obebo must be subjected to the commission clearance process just like in an election.
Section 32 (d) of the county governments act states that a person nominated for appointment as deputy governor shall be a person eligible for election as Governor.
Hands tied
IEBC Chief Executive Officer Marjan Hussein Marjan in a response to the ODM party says the agency hands are tied and thus can’t clear Elijah Obebo to undergo the vetting.
According to Marjan, the office of the Governor or party secretariat is required to write to the commission forwarding the name of the nominee together with his particulars upon declaration of a vacancy.
Upon receipt of the name, the agency is required to appoint through a gazette notice the County Returning Officer to clear the proposed nominee pursuant to the constitutional and statutory qualification documents for the position.
The nominee is then required to appear before the county returning officer for clearance on a scheduled date whereupon he is expected to present all requisite documents.
If satisfied that the nominee meets the criteria, the county returning officer issues a nomination certificate after which IEBC informs the Governor that the nominee qualifies.
“The governor then shall forward the Nomination Certificate to the County Assembly to kick start the process of approval of the nominee in accordance with section 32 (d) of the County Governments Act,” Marjan says.
Successful nomination
The electoral agency boss says even after successful nomination, vetting and approval, only the IEBC Chairperson has the legal mandate to gazette the new deputy governor to pave way for swearing in.
The letter dated April 2 adds; “Its noteworthy that in terms of the constitutional prescription and IEBC Act, it is the Commission Chairperson who executes gazette notices on behalf of the Commission. However, noting the absence of the chairperson, we wish to inform you that the Commission is not in a position to appoint the returning officer and subsequently gazette the Deputy Governor approved by the Assembly.”
With the stalled reconstitution of IEBC, Marjan advised ODM to consider moving to court and seek judicial intervention and obtain a court order that can give them a legal basis to undertake the exercise in the absence of the chairperson and commissioners.
ODM National Elections Board chairperson Catherine Muma wrote to IEBC on March 27, forwarding the name of Obebo.
However, with IEBC clarifying the DG nominee must meet the qualification of candidate for Governor, it is not clear if Obebo will also face another legal quagmire given he is currently seven as the Chairperson of the Kisii County Public Service Board. The law bars public servants who have not resigned from seeking elective posts. Arati’s move to nominate Obebo followed the impeachment of the former deputy governor Robert Monda by senators last month over corruption allegations.
Contacted, Arati referred PD to a High Court ruling which compelled the IEBC to reinstate MCA at the Uasin Gishu County Assembly.
Monda became the first deputy governor to be removed from office through impeachment since the counties were established in 2013.
Monda was accused of receiving a Sh800,000 bribe from Dennis Mokaya under the pretext that he would secure him a commercial manager position at the Gusii Water and Sanitation Company.
