Lawyer Ndegwa Njiru Says Diaspora is an Alien Constituency That Contaminated the Kenya Presidential Election

A petitioner challenging the results of the August 9th presidential election has accused the IEBC Chairperson Wafula Chebukati of tallying votes outside the 290 constituencies envisaged in the Constitution.

Through his lawyer Ndegwa Njiru, petitioner David Kariuki Ngare argues that the diaspora is not recognized as a constituency under Articles 4 and 89 of the Constitution.

While making his submissions before the Supreme Court on Wednesday, Njiru stated that Article 89(1) of the Constitution provides that there shall be two hundred and ninety constituencies (290) for the purposes of a general election.

 “We have averment that the elections took place in 291 constituencies, the fundamental question is where did this extra constituency come from and is this extra constituency a constitutional constituency defined by the armpits of the constitution under article 89,” he posed.

In his submissions, the advocate wondered whether the August 9th presidential election can be regarded as a constitutional election given that it was infiltrated by what he described as an “alien constituency.”

He argued that the constitution did not vest any powers whatsoever to any individual including the IEBC Chairperson to add constituencies at will.

“An individual cannot create a constituency, if it was in the interest of Kenyans while promulgating this constitution and adopting this constitution and giving this constitution unto themselves an extra constituency, there was nothing as easy as saying as such,” Ndegwa averred.

While acknowledging that Kenyans in the diaspora have a right to vote, lawyer Ndegwa stated that the Constitution does not recognize them as a constituency on itself under Article 97 of the constitution.

“To the extent that election in an extra constituency not defined in article 89 of the constitution took place, that contaminated the elections,” he said.

He submitted that the diaspora being regarded as a constituency was in contravention of the constitution given that Chebukati tallied the diaspora vote when checking the 50+1 threshold attainment for the president-elect as envisaged in Article 138(4).

Ndegwa contended that the computation of the diaspora vote count for the presidential election in compliance with that threshold was in contravention of the Constitution and the Election Act.

“We are submitting that these elections conducted in alien constituencies contributed to the computation of 50+1 percent. An election can be voided if it didn’t comply with the constitution or any other written law. A constituency as defined in article 89 must be within the territory of Kenya,” he concluded.