[2022] KEPPDT 1072 (KLR)

Lodi v Amani National Congress; Independent Electoral & Boundaries Commission (IEBC) (Interested Party) (Complaint E013 (ELD) of 2022) [2022] KEPPDT 1072 (KLR) (8 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1072 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E013 (ELD) of 2022

Stephen Ligunya, Presiding Member, Amina Hashi & Andrew Waruhiu, Members

August 8, 2022

Between

Angeline Akai Lodi

Complainant

and

Amani National Congress

Respondent

and

Independent Electoral & Boundaries Commission (IEBC)

Interested Party

Judgment

Background 1. The Complainant is a member of the Amani National Congress (Hereinafter ANC). She duly applied for the position of nominated Member of County Assembly (MCA) Nandi County under the “County Assembly (Marginalized Group) PWD Category. Having being initially placed in the Nandi Marginalized Group /PWD party list, she was instead included in the Marginalized Group/PWD list for Samburu County which she avers that she had no chance of winning as ANC has not fielded a candidate. The Complainant challenges her inclusion in the Samburu Marginalized Group party list published by the Independent Electoral & Boundaries Commission (IEBC) on the July 27, 2022, hereinafter the Interested Party.

2. The Complainant seeks amendment of the Respondent's Samburu PWD Group list by deleting her therein and transferring her name to the Nandi PWD Group List and prioritized at number 1 for being the most qualified candidate by virtue of being a person with disabilities and equally from a recognized minority and marginalized community in Nandi County. The Complainant filed a complaint on August 2, 2022, along with a supporting affidavit on August 3, 2022 as well as copies of sent emails to the 1st Respondent and Interested party’s email address respectively.

3. The Complainant submits that she is a certified member of the 1st Respondent and is a duly registered person with disability, ID number 23816439, and disability registration number NCPWD/P/1903 and a resident of Nandi County.

4. She asserts that she was first placed in the ANC nomination list in Nandi County and that her name was changed from Nandi county Assembly nomination party list to Samburu County Assembly nomination party list without her consent or any form of consultation.

5. In addition, the Complainant avers that ANC has no single candidate in Samburu County and having being relocated to Samburu County the possibility of being nominated are null and void and she feels feel that her rights as a person living with disabilities has not been protected, and are not being observed/realized by ANC and the names of PWDs are being used for formality purposes to tick the box for compliance .

6. The Complainant alleges that she has not been given priority in the placement of her name as a PWD in the nomination list and instead her names was being presented as an alternative in the last positions and that with the placement of her name at position 4 in the nomination list it is close to impossible that she will get nominated as a PWD.

7. She confirms that she understands that to the best of her knowledge and belief, that there is no a single representative of PWD's in the party nomination list in Nandi county.

8. The Complainant seeks the following reliefs:-i.My name to be placed back in the party nomination list Nandi County.ii.As a PWD, to be accorded nomination position as a priority in order to realize the representation of PWD's in the political arena in Nandi county.iii.I pray and request the ANC leadership to intervene and help in realizing the political rights of PWD's within the party.iv.I pray and request that the ANC leadership to put pragmatic mechanisms in place to protect the rights of PWD's within the party and avoid such infringements in future.v.I humbly request the ANC leadership to consider representation of PWD's at all levels and be at the front line in advocating for the same.vi.Costs of the Complaint be borne by the Respondent.

Respondents case 9. The Respondents did not submit a responses and did not make an appearances despite having been served via emails by the Complainant. This emails in line with Article 159 of the Constitutionsuffice as proof of service.

Analysis of the tribunal and finding 10. We have reviewed of all documents and pleading filed and annexed by the party; and a brief oral submission by the claimant and, we list the issues for determination as follows:a.Whether this dispute falls within the mandate of the Tribunalb.Whether the Complaint has merit and the remedies thereto.c.Costs

11. The Gazette Notice is clear on this, 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 – capital letters–a.The County Assembly (marginalized groups) party list must have eight names of qualified marginalized group nominees.b.The nominees to the party list must have similar qualifications as those required for candidates contesting for elections as members of the County Assembly.c.In order to meet the gender requirement, the order of the nominees in the party list shall alternate between women and men candidates.Among all the eight 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.

12. Article 100 of the Constitutionprovides that Parliament shall enact legislation to promote the representation in Parliament of-a.women;b.persons with disabilities;c.youth;d.ethnic and other minorities; and (e) marginalized communities.

13. Articles 97(1) (c), 98(1) (b), (c), (d) and 177(1) (b) and (c) and shall alternate between male and female candidates. Such a party list is required to ensure fair representation to take into consideration the principles of Article 82(b) (two-thirds gender rule) and Article 100 (promotion of marginalized groups) of the Constitution (Regulation 20(2)).Regulation 21(1) provides the manner of submitting the party lists to the IEBC.

14. The Commission can scrutinize the party list and if it does not conform to the requirements of the Constitution, the Elections Act and the Elections (Party Primaries and Party Lists) Regulations, the Commission shall require the political party to review and amend the party list so that it conforms to the requirements of the law and guidelines.

15. Further is imperative to note that the Complainant Madam Angeline choose to appear before the Tribunal as a self-representing litigant.

a. Whether this dispute falls within the mandate of the Tribunal. 16. As already stated earlier, the Respondent and the interested party did not file any document to oppose the complaint. It consequently means that the claim was unopposed as a matter of fact. However, it still behooves this tribunal to analyze the claim on its own merits to confirm whether or not the claim is substantiated.

17. The claimant did not provide us with the evidence of the list in which her name was removed or replaced as she alleged. The tribunal did however acquire a copy of the party lists that was submitted to the Interested Party on 2July 7, 2022 and at page 47 of the said list, the Tribunal noted that it shows that the Complainant is listed as an ANC party nominee for Samburu County Assembly under the PWD category at position 4 . The Complainants’ name is clearly missing in the Nandi County Assembly party’s nominees list .

18. This therefore depicts that this dispute falls under Section 40(1)(b) as read with Section 40(1)(fa). Precisely this Tribunal derives its jurisdiction from Section 40 of the Political Parties ActNo. 11 of 2011 as follows;(1)The tribunal shall determine-a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and (fa) disputes arising out of party nominations.(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.

19. The tribunal is well aware that under Section 40 (2) of the Political Parties Act, it is the obligation of the parties to exhaust or attempt to exhaust internal dispute resolution mechanisms before moving this tribunal. The complainant satisfied this requirement through her communication to Secretary Ms.Ferra Etyang as the Secretary National Elections Board ANC, which saw the ANC official direct the complainant to file the complaint vide email address referenced as anc2017@gmail.com which email was sent and evidenced to the Tribunal.

20. We opine that the Complainant has shown a genuine attempt at exhausting IDRM and as such is properly before this tribunal. In any event, from then to now, there still is no response by the Respondent to the correspondence and communications by the Complainant .In George Okode & Others vs Orange Democratic Movement & Others Petition No. 294 of 2011, Majanja J clarified those provisions of Section 40(2) of the Political Parties Act by stating that“The same should be interpreted as permitting aggrieved members of a political party to bring their grievance before the Political Parties Tribunal where the political party has neglected or refused to activate the internal party dispute resolution mechanism.”

21. It is therefore our finding that the Tribunal is properly clothed with jurisdiction to hear and determine this dispute in accordance with section 40 of the PPA.

a. Whether the Complaint has merit and the remedies thereto 22. The complainant has provided unequivocal evidence that she is a member of the Respondent party. It is our opinion that given the proximity to the general elections scheduled for August 9, 2022, it was necessary for the Respondent to acknowledge and in the least revert to the complaint. It was necessary that they give a direction on the same so as to calm the anxiety in its member who expected expeditious action in a limited time span.

23. Complainant has indeed proven her case to the extent that she was considered for the Samburu County Assembly party list without her consent whilst she was to be placed in the Party List for Nandi County Assembly as her County of residence. Again this issue remains unrebutted and in the event of contrary evidence we are inclined to hold in the favour of the complainant.

24. The silence of the Respondent in this matter leaves us only with the assertions of the Complainant. The communications presented by the Complainant went unanswered and that denied her a fundamental right as enshrined in Article 47 of the Kenyan Constitution.The said Article provides as follows:Article 47(1)“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

25. The Respondent traversed this clear boundaries when it transferred a name of a member of the special group protected under Article 100 of the Constitution from Nandi County Assembly to Samburu County Assembly without any reason.

26. It is no wonder the Complainant as a PWD whose evidence has been placed before us is left feeling aggrieved as she states they are being used to fill in the boxes and urges this tribunal orally in her submission to beseech the party to do the right thing .

27. It is beyond peradventure that at some point the Respondent did create a legitimate expectation on the Claimant that she would be its nominee under the PWD category for nomination to the Nandi County Assembly . Having created such an expectation, Article 47 obligated the Respondent to give her reasons on why her name was transferred from Nandi County Assembly to Samburu County Assembly . This was not done and consequently the legitimate expectation of the Claimant was violated.

28. In the absence of contrary evidence on record, we accordingly find that the transfer of the Claimants’ name from the Nandi County Assembly Party list to the Samburu County Assembly Party List ,that was published by the Interested Party on the July 27, 2022 was not justified and must be rectified.

Final orders i.The Complainants complaint succeed and is allowed and the Respondent is hereby directed to amend the Nandi County Assembly Party List by inserting the Complainants name to its PWD category and Remove/delete the name of the Complainant from the PWD category under the Samburu County Assembly Party List and the same to be communicated to the Interested Party within 48 hours of this decision.

ii.Each party to bear their own costs in the interest of fostering party unity.

Those are the orders of the tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 08TH AUGUST 2022. HON. LIGUNYA STEPHENPRESIDING MEMBERHON HASHI AMINAMEMBERHON ANDREW WARUHIUMEMBER