CORD yesterday filed a suit to compel the Independent Electoral and Boundaries Commission to print new ballot papers for the Makueni senate by-election after it emerged that the ballots already prepared do not have the name of the party's candidate, Mutula Kilonzo Junior.
IEBC has been considering the options available to it which include manually adding Kilonzo Jnr's name on the ballot paper as the printers, Smith and Ouzman have said they cannot be able to print and deliver the amended ballot papers before the by-election scheduled for this Friday.
Yesterday, Kitui Senator and Wiper Democratic Party chairman David Musila said the party will be prejudiced in the elections and Kilonzo Jnr's rivals will be given undue advantage if his name is not included on the printed ballot paper.
The Kitui Senator says that Wiper would suffer other violations of its constitutional rights to participate in the elections, equality before the law, the rule of law and the principle of democratic conduct of elections, if Kilonzo Jnr's name was not printed.
The party accuses the IEBC of willfully disobeying orders issued by Justices Richard Mwongo, Mumbi Ngugi and Weldon Korir by deliberately failing to include Kilonzo Jnr's names on the ballot.
It says the court had the power to order the IEBC to ensure that the ballot papers to be used in the by-election "will contain the names of the party's nominee, not by embossment but in a printed form."
"I informed the Chairperson and the Commissioners present that the position was untenable and unacceptable to my party because it neither complied with the court order nor was it consistent with the provision of the law relating to elections in Kenya," Musila says in a sworn statement. The case will be heard this morning by Justice Weldon Korir.
Addressing a press conference later, Musila, Cord allied senators and MPs accused the IEBC of using the by-election to 'perfect impunity' by deliberately disregarding last week's court order directing it to ensure that the Wiper nominee was included in the ballot.
They said the actions before, during and after the order was a clear indication that the commission had already pre-determined the outcome of the Makueni by election.
They accused the IEBC of plotting to impose a leader on the people of Makueni and said they will robustly resist such attempts.
"Cord will not participate in an election that lacks credibility and which every indication shows has been pre-rigged," said Musila.
The omission of Kilonzo Jnr's name from the ballot was announced during a meeting between the IEBC and officials of political parties that have nominated candidates in the by-election. The meeting had been called by IEBC chairman Isaack Hassan to apprise the parties of the preparations.
Hassan said the ballot papers had been printed before Friday's court order and assured the Wiper and Cord Alliance officials that the commission would do its best to ensure that Kilonzo Jnr's name appeared on the ballot.
Hassan said the commission had printed 300,000 stickers bearing Mutula Jnr's name which will be pasted on the by election ballot.
However, the ten MPs who attended the press conference objected to this saying it was illegal as it was tantamount to tampering with the ballot.
"Opening the ballot papers to stick the name of a candidate is tampering. If this happens this will not be a credible election," Musila said.
Nominated Senator Judy Sijenyi expressed concern that the IEBC had gone ahead to order the printing of the ballot papers even before the outcome of the court case was known.
"I was one of the lawyers involved in the Kethi case. We obtained orders restraining IEBC from printing the ballot papers and they gave their undertaking before the court!. The IEBC is an Independent body and should not be seen to be colluding with Jubilee in discharging its mandate. It must work impartially,"said Sijenyi.
The IEBC's dispute resolution committee declined to hear a challenge from former assistant minister Agnes Ndetei who complained that the Makueni returning officer Salad Boru had accepted Kilonzo's nomination way past the deadline stipulated in Section 13(2)of the Elections' Act.
The commission's CEO James Oswago said such a grievance should be resolved by the court which had the power to block the nomination.
Ndetei filed her complaint soon after the High Court allowed Wiper Democratic Movement to nominate a candidate after three judges upheld IEBC's decision to revoke the party's first choice, Kilonzo Jnr's sister Kethi whose candidacy was knocked out because she is not a registered voter.
Five candidates including Narc's Philip Kaloki, Urbanus Katumo, Jane Kitundu of Labour party, Pick's Harun Mwau and Mutula Jnr are fighting to capture the seat which was left vacant following the death of Mutula Kilonzo.
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