Mwabwanga & 2 others v Orange Democratic Movement & another (Complaint E008 (MSA) of 2022) [2022] KEPPDT 1016 (KLR) (9 August 2022) (Judgment)
Neutral citation:
[2022] KEPPDT 1016 (KLR)
Republic of Kenya
Complaint E008 (MSA) of 2022
M Lwanga O, Presiding Member, T K Tororey, L Wambui & D. Kagacha, Members
August 9, 2022
Between
Mwalimu Ali Mwabwanga
1st Petitioner
Zainab Nadzau Mambo
2nd Petitioner
Binti Ganzala
3rd Petitioner
and
Orange Democratic Movement
1st Respondent
Independent Electoral and Boundaries Commission
2nd Respondent
Judgment
1.The Petitioners are members of the 1st Respondent, the Orange Democratic Movement [ODM]. They successfully participated in the ODM nominations for inclusion in the ODM Kwale County Assembly party nominations list.
2.The Petitioners aver that they were placed top of the list when the same was forwarded to the ODM secretariat and were thus surprised when the list was published by the IEBC [Independent Electoral and Boundaries Commission] to find that their positions and descriptions were altered in the said ODM party nominations list for Kwale County Assembly.
3.It is the Petitioners submission, that their inclusion category in the said ODM party nomination lists were under the marginalized and gender top up categories.
4.The petition herein prays for orders: -a.That the nominee list submitted by the 1st Respondent to the 2nd Respondent and published on Gazette Notice No. 6378 Vol. CXXIV- No.101 of 3rd June 2022 be nullified and in its place the list that was agreed to, prepared and submitted to the 1strespondent by party members be adopted as the nominee list of the 1st Respondent. b. Cost of this petition.
5.In compliance to section 40 (2) of the PPA [Political Parties Act] the Petitioners submitted a supplementary/further affidavit, sworn by the 2nd Petitioner, being the duly authorized signatory on behalf of the Petitioners, stating that they had attempted to resolve the matter internally but the issue has remained unresolved, hence the filing of this petition before this Tribunal.
6.The Respondents though served, as averred by the Petitioners Advocate, did not respond.
7.The petition thus is uncontroverted.
Issues before us
8.This being an undefended case the only issues we will address are:a.Is this Tribunal properly seized of jurisdiction?b.Is petition justified?c.What orders should issue?Our AnalysisWhether PPDT has jurisdiction
9.The Petitioners aver that attempts to resolve the issue internally has failed hence the filing of the petition herein. This averment is unchallenged, the Respondents having failed to respond to the claim.
10.The current wording of section 40 (2) PPA states as follows: (2) Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms. Emphasis ours.
11.The information before us, amounts to an attempt to resolve the matter internally as anticipated in the law as cited above. The dispute is thus properly before us.Is the petition justified?
12.The Elections (Party Primaries and Party Lists) Regulations, 2017, Submission Of Party List guides party list nominations.
13.In guiding our thinking, we have considered the said relevant law [Regulations], as reproduced below, as it provides in respect of the county assembly party nomination list:County Assembly (Marginalized Group) Party ListThe following nomination procedures shall apply to political parties in the preparation of Party List for nomination of County Assembly (Marginalized Group) Party List:i.The County Assembly (marginalized groups) Party List must have 8 names of qualified marginalized group nominees.ii.The nominees to the Party List must have similar qualifications as those required for candidates contesting for elections as members of the County Assembly.iii.In order to meet the gender requirement, the order of the nominees in the Party List shall alternate between women and men candidates.iv.Among all the 8 nominees, there shall be at least two youth, two persons with disabilities and two persons representing marginalized groups. One nominee cannot represent more than one special interest.County Assembly (Gender) Party ListThe following nomination procedures shall apply to political parties in the preparation of Party List for nomination of County Assembly (Gender Top Up) PartyList.1.The County Assembly (Gender Top Up) Party List must have the number of qualified nominees reflecting the number of wards in each of the respective counties.2.The nominees to the Party List must have similar qualifications as those required of candidates contesting for elections as members of the County Assembly.3.In order to meet the gender requirement, the order of the nominees in the Party List shall alternate between women and men candidates.
14.The petition is not controverted. We have seen, attached to the petition bundle, a list from ODM Kwale Governor aspirant forwarded to the Chairperson of the ODM NEB [National Elections Board] and the names of the petitioners are listed therein.
15.More particularly in the gender top up list the first name at position 6 is Zainab Nadzau Mambo [2nd Petitioner herein], the fourth female nominee is the list is Binti Ganzala [3rd Petitioner herein]. The name of the 1st Petitioner herein, Mwalimu Ali Mwabwanga, appears as the 4th male in the marginalized list in issue and he is described as a PWD [person living with disabilities].
16.It is apparent from the information placed before us that the Petitioners did successfully apply for nomination to the ODM party nomination list for Kwale County Assembly.
17.As such the alleged removal and or change in the positioning in the said party nominations list should have been procedurally done, involved them and/or explained to them.
18.We thus find that the petition is justified.
Disposition
19.In light of our analysis, we order as follows.a.That the 1st Respondent herein, Orange Democratic Movement [ODM] Party, forthwith include the names of the Petitioners herein, Mwalimu Ali Mwabwanga, *Zainab Nadzau Mambo and Binti Ganzala in the 2022 general elections Orange Democratic Movement Kwale County Assembly party nominations list.b.The description of the 2nd Petitioner herein Zainab Nadzau Mambo in the said ODM party nomination list for Kwale County Assembly to indicate that she is a member of the Swahili Community.c.That notification of this decision issue to the Independent Electoral and Boundaries Commission.d.That the costs of this petition are awarded to the Petitioners as against the Orange Democratic Movement.
DATED THE 9TH DAY OF AUGUST 2022LWANGA. O (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)DANIEL KAGACHA (MEMBER)