Madaraka Peoples Movement Sues the Government of Kenya for Constitutional and Human Rights Violations

Madaraka People’s Movement has filed a lawsuit against the Government of Kenya for arbitrarily denying it registration. The lawsuit names the Registrar of Political Parties, Ms. Lucy Ndungu, as Second Respondent. The handling of Madaraka registration has been clearly substandard and symptomatic of larger problems. It is a significant reflection of the institutionalized system of abuses in the office of the Registrar of Political Parties of Kenya.

The Registrar’s office under Lucy Ndungu has a track record of unprofessional service provision, and serious deficiencies in operations. From October 2009 to the present, Lucy Ndungu and her office has committed separate, distinct and consecutive acts of negligence, abuse of citizens, outrageous and inexcusable mishandling of party registration process tantamount to serious violations of fundamental freedom in the Bill of Rights.

The Madaraka case came up for mention on May 18, 2012 before Hon. Justice Lenaola in the Milimani High Court, Nairobi. It accuses the Registrar and the Government of contravention of rights and fundamental freedoms under articles 4 (2), 10 (a), (b), (d) 19, 20, 21, 22,23, 24, 27, 28, 32, 33, 35, 36, 37, 38, 40, 47, 48 and 50 of the constitution of Kenya 2010, and violation of sections 3, 5, 6, 7 of the Political Parties Act chapter 11 of 2011, as well as articles 25, 28 of the International Covenant on Civil and Political Rights, of which Kenya is a signatory. The alleged violations also contravene the African (Banjul) Charter on Human and Peoples' Rights (Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986).

Excuse Number 1—Voter Register

Right from the beginning in October 2009, the registrar refused to take the party's application for registration, citing lack of voter register.

Excuse Number 2--Referendum

When voter registration started in February 2010, the next excuse was the referendum.

Excuse Number 3—New Political Parties Act

When the referendum came and went in August 2010, the next excuse was that the new Political Parties Act under the new constitution was not yet enacted.

When the party threatened to file a lawsuit, the registrar eventually caved in and accepted the application and fee of Ksh. 100,000 on December 6, 2010. As per the Political Parties Act, Section 21. (1) “Upon making an application for registration, a political party shall first be provisionally registered and issued with a certificate of provisional registration within thirty days on fulfilling the conditions prescribed in section 18.

The party met all the conditions stated in section 18. Thus, the party expected to hear from the registrar not later than January 6, 2011. Yet, by January 16, 2011, (40 days later), the party had not heard from the registrar. Thus, this was an infringement of Political Parties Act Section 21.

Excuse Number 4—Some People wrote to the Registrar Telling her not to Register the Party

As they expected, (and as the party was preparing to file a case in the High Court) on January 17, 2011, the registrar telephoned party officials stating that she had made a decision. The “decision” was in the form of a letter from the registrar backdated to December 17, 2011 stating that she was in receipt of a letter from some people who have advised her not to register the party.

The Final Excuse- Number 5—The word “Madaraka” is a Legal Entity

After the party’s rebuttal showing that the registrar had no legal basis to refuse registration because some people wrote to her, the registrar verbally informed party officials that she had a new “reason” for refusing to register the party. The new “reason’ was that the name ‘Madaraka’ was “in the constitution” and therefore could not be used in a party name.

She was asked that since the word “Kenya” was in the constitution, did it mean the word ‘Kenya’ was also prohibited in a party name? After realizing that what she was saying did not make any sense, she changed and cited Section 20 (d) of the Political Parties Act. Eventually she put her reasons in writing in a letter dated February 2, 2012:

“This is to inform you that the names suggested do not comply with the Political Parties Act 2011. It is similar to other legal registered entities.” She did not state which these “legal entities” were. The fact of the matter is that Madaraka Party was originally registered on October 23, 2006, and has prior claim to the name. The party waits to hear which entities the registrar has in mind.

Filing of the Case

Once a new lawyer was hired in November 2011, the case was presented to the Political Parties Tribunal in December 2011which expressed inability to handle the matter.

The constitutional case was filed in the High Court in February 2012. The petition to serve the registrar was drawn on March 6th 2012 setting the mention date as April 19, 2012. On that date, the registrar did not even bother to present herself in court. A new mention date was set for May 18, 2012.

The Government Hires a Law Firm to Fight Madaraka

The Counsel for the Registrar (Nyamodi & Advocates hired by taxpayer’s money to frustrate people’s democratic rights) showed up, but in an obvious time wasting tactic, had not yet responded to the petition. This is not to mention that the registrar has at least one full time lawyer in her office named Geraldine Mukele. The Court ordered the registrar to respond by 06.07.2012 so that on that date the parties return to court for direction.