17 September 2017

Kenya: Push and Pull as Kenya Prepares for Fresh Presidential Elections

Ahead of the Supreme Court's delivery of its full ruling that annulled Kenya's August 8 presidential election, political drama, intrigues and threats have taken centre stage.

The highlight of the week was Thursday's petition by Nyeri Town MP Ngunjiri Wambugu to remove Chief Justice David Maraga for presiding over the nullification of the election.

However, President Uhuru Kenyatta distanced himself from the suit and directed Mr Wambugu to withdraw it, saying; "We have agreed to go back to the voters."

But this did not in anyway mute demands by the opposition National Super Alliance (Nasa) for the removal of key officials of the Independent Electoral Commission (IEBC), and continued criticism of the judges of the Supreme Court, including revelation of plans by Jubilee members of parliament to reduce the court's powers.

Earlier on Tuesday there was drama when Nasa members of parliament boycotted the opening of parliament by President Kenyatta, arguing that he does not have powers to perform the task. The House started its official session on Wednesday but the MPs refused to participate, saying the House was not properly constituted.

Article 134(1) of the Constitution states that between the date when an election is held until the newly elected president is sworn in, the person who was president on the date of the election shall not hold full powers of the president. This is what is called temporary incumbency.

During the temporary incumbency period, the person holding the office (that is the temporary incumbent) shall not have powers to nominate or appoint judges; to nominate or appoint any other public officer required to be appointed by the president; nominate or dismiss Cabinet secretaries; to nominate or dismiss any person serving as a diplomatic representative of Kenya.

He or she may not exercise the power of clemency or mercy to convicted person or confer any national honours or award on any person.

However, there's no restriction on the powers of summoning any of the chambers of parliament.

House Business Committee

Nairobi lawyer Okwe Achiando says that while temporary incumbency does not prevent the president form addressing parliament, "in an organised democracy, you cannot call parliament to address members and allow them to debate your speech, which contains your agenda for the country, when you are still facing an election."

Standing Orders require parliament to discuss the president's speech, which usually outlines the government legislative agenda for the one week before MPs can embark on any other business.

However, this was not the case as President Kenyatta, in his speech, concentrated on national cohesion and rule of law issues.

The official opening of parliament is meant to pave the way for MPs to form crucial House committees, among them the House Business Committee that prepares the agenda to be tabled before the House. But this time it was lacking because there is no substantive president.

Orange Democratic Movement chairman John Mbadi told The EastAfrican that the formation of the House Business Committee is illegal and unprocedural, which will see all matters passed by parliament challenged in court.

Nasa maintains that since the Supreme Court gave a verdict that the presidential election had illegalities and irregularities, the verdict amounted to criminal culpability on the part of the electoral body.

The alliance has issued a set of conditions that must be met before its participates in the October 17 election. (See list of demands at the end of the story.)

Supreme Court powers

On the other hand, Jubilee MPs in both the National Assembly and the Senate confirmed that they plan to use their majority in both Houses to enact laws which will reduce the powers of the Supreme Court, such as denying the court the power to overturn the results of a presidential election.

But Okello Opollo, a Nairobi lawyer said that such a move would be an assault on the freedom of the Judiciary and the 2010 Constitution that seeks to set a clear demarcation between the three arms of government.

"It was not in vain that the constitution created a Supreme Court after years of mistrust of the Judiciary. It was meant to act as a superior and neutral arbiter in a bitter political contest," said Mr Opollo.

The Supreme Court was included in the 2010 Constitution as part of comprehensive judicial reforms after the dispute over the 2007 presidential elections.

With less than a month to the fresh elections President Uhuru has changed campaign tact and has recently been meeting delegations from various regions at State House, Nairobi, in addition to public rallies.

Jubilee has also adapted the strategy of engineering political defections from Nasa as a psychological weapon -- a throw back from Kanu's political playbook.

Nasa on the other hand is yet to start campaigning and has been busy pushing for reforms within IEBC. Sources within Nasa think tank revealed that the coalition will be holding less public rallies and will concentrate on door-to-door campaigning.

Nasa conditions for October 17 poll

That all Forms 34bs be preprinted indicating names of polling stations and candidates, and should be standardised.

That presidential election to be constituency based; as confirmed by the Court of Appeal in the IEBC vs Maina Kiai case.

That the media have access to polling station and constituency results.

That another printer other than Al Ghurair be contracted to print ballot papers and results declaration forms for the fresh election.

That election monitors from a multi-sectoral group be introduced and have a signing off role for election material and results declaration forms at polling stations and constituency tallying centres.

That a new lot of Returning Officers be appointed for all 291 constituencies. And that their posting should be done through open balloting to determine where they will be posted.

That there be no test messaging in sending election results. That only scanned images be sent through the KIEMS kits to constituency and national tallying centre and displayed to the public.

That candidates' agents be present at all levels and processes of the election.

That independent international experts be engaged to manage the entire ICT framework for the election with close supervision of the candidates' agents and the IEBC.

That IEBC provides a list of all polling stations and registered voters per polling stations in advance and list should have GPS location of said stations and the network coverage.

That all returning and national tallying centre officers who allowed illegal documents - 80 fake and therefore illegal Form 34bs in the August 8 poll -- to pass as results, vacate office before the fresh election; That the officers who facilitated the display of figures purported to be results and which were disowned by the Commission at the Supreme Court, also vacate office.

Additional reporting By Eric Oduor

Kenya

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