July 20, 2018

High Court annuls several amendments to election law

The National Assembly. [www.the-star.co.ke]

Several amendments to changes in the Electoral Law and IEBC Act passed by Parliament last year have been annulled by the High Court.

Justice Chacha Mwita on Friday declared several of those amendments passed unanimously by Jubilee legislators in the both Houses in October as invalid.

The opposition boycotted sittings debating the amendments and also the crucial sitting when the vote was taken. This came just a few days before the repeat presidential polls on October 26, 2017.

The Centre for Open Governance (Africog), Katiba Institute other bodies, moved to court to challenge the constitutionality of the amendments.

In his ruling, the Judge stated according to Daily Nation: “In conclusion, therefore, having considered the petition, the responses and submissions by counsel for the parties, the authorities relied on by parties and those by the court and also having considered the applicable law, I am persuaded that certain amendments introduced through the Elections Law (Amendment) Act No. 34 of 2017 failed the constitutional test of validity.”

Some of the sections invalidated by the court include those made to the IEBC Act in particular Section 2 on the definition of the word chairperson, section 74(4), (5) and (6) and the entire section 7B and paragraphs 5 and 7 of the Second Schedule to the Act on the quorum for purposes of meetings of the commission.

In the Elections Act, amendments introduced to Sections 39(1) (C), (A), 39(1D), 39 (1E), 39(1F), 39(1G) and the entire Section 83, were constitutionally invalidated according to the Court.

Section 39(1) (C) was controversial in that it advocated for electronic and manual transmission of the tabulated results for the president from a polling station to the constituency tallying centre and to the national tallying centre.

Section 39(1D) soared the controversy in stating that where there is discrepancy between the electronically and manually transmitted results, the manually transmitted results shall prevail.

39 (1E) stated that failure to transmit or publish the election results in the electronic format will not be a  factor to invalidate results announced and declared by respective presiding and returning officers at the polling and constituency centres.

Section 83 was constitutionally invalid in that it had barred the court from cancelling the results of an election if it conforms with the law and if in the event of non-compliance, it did not substantially affect the result of the election.

The amendments widely criticized by the opposition had expunged the requirement that for anyone to Chair IEBC, he/she must be a qualified to hold the position of a Judge of the Supreme Court. Therefore, it opened a platform where non-lawyers would be eligible to hold the officer of IEBC chairperson.

IEBC-Vice chairperson was, going by the amendments, allowed to step in for the Chairperson in case he was absent.

The amendments also prescribed that in the event both the chairperson and the vice-chairperson were absent, commissioners would elect one of their own to assume the role of the chairperson. The quorum of the commission was reduced from five to three.

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