Court nullifies changes to Kenya election laws


IEBC

In Summary

  • In his ruling, Justice Chacha Mwita said the Kenyan Constitution is supreme and any interference with it will not to be tolerated.
  • The alterations had been made after the Supreme Court nullified President Uhuru Kenyatta’s re-election in the August polls.
  • In a case filed by Katiba Institute, the Judge declared the changes as "unconstitutional and invalid", the amendments that gave precedence to manual transmission of results and reduced the quorum of the IEBC.

The High Court has invalidated radical changes to the Election Laws that were pushed through by Jubilee legislators in October last year.

In his ruling, Justice Chacha Mwita said the Kenyan Constitution is supreme and any interference with it will not to be tolerated.

The alterations had been made after the Supreme Court nullified President Uhuru Kenyatta’s re-election in the August polls.

In a case filed by Katiba Institute, the Judge declared the changes as “unconstitutional and invalid”, the amendments that gave precedence to manual transmission of results and reduced the quorum of the Independent Electoral and Boundaries Commission (IEBC) to three.

“They have the effect of weakening rather than strengthening our electoral process, any amendments meant to circumvent the constitutional principles are unconstitutional,” ruled Justice Chacha.

This comes barely a year after Jubilee headed to Parliament and used its numerical muscle to push through sweeping changes to the election act, ostensibly to seal the loopholes that were used to invalidate the State House contest poll outcome.

Parliament had amended Section 39(1e) of the Act, to provide that where a discrepancy arises between the electronically transmitted and the manually delivered results, the accurate record of results tallied and verified at the polling station would take precedence.

Section 39(1f) was also amended to give IEBC a leeway in case it failed to transmit or publish election results in an electronic format due to any unforeseen challenges, amendments Justice Mwita invalidated and agreed with the petitioners, that they would undermine the pursuit of a free and fair election.

“Rather than a step forward, it’s a draw back in the pursuit of a free election,” ruled Justice Mwita.

Jubilee had also pushed for an adjustment to the Election Law, requiring IEBC to establish a mechanism for live streaming of results as announced at polling stations.

However, Parliament, in the amended law, provided that the live streaming was for purposes of public information and not a basis for declaration of the final outcome in a Presidential election.

“You can’t have results that are streamed live but are of no value in the final declaration of results, it’s a mockery of democracy,” said Justice Mwita.

In the amendments that were passed just before the October repeat presidential election that was boycotted by NASA candidate Raila Odinga, Jubilee altered the IEBC Act to provide that in the absence of the IEBC Chairperson and vice chairperson, the remaining commission could appoint one of them as the acting chair.

They also reduced the quorum from 5 members of the commission to half of the existing commissioners, as long as they were not less than 3.

“The provision will weaken the functions of the chairperson and cause unnecessary tension, members of the commission may take advantage of the chairperson’s absence to make decisions that have a fundamental effect on the entire country,” ruled Justice Mwita

Sources disclosed that the Jubilee is likely to head to the court of appeal to contest the High Court verdict.

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Story By Francis Gachuri
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