2 November 2017

Kenya: Groups in Court to Block Enactment of Amended Election Laws

Photo: Capital FM
A voter casts their ballot in the October 26 presidential poll.

Two lobby groups have moved to court seeking to suspend the implementation of the amendments made to the election laws.

The Katiba Institute and the Centre for Open Governance, Africog, have sued the Attorney-General and the Government Printer.

Through lawyer Waikwa Wanyoike, the lobbies also want the gazettement of amendments done to the disputed laws which are set to come into effect as from November 4, to be temporarily suspended until their case is heard and determined.

Katiba and Africog want a determination on whether it is proper for Parliament to pass laws engineered to specifically regulate an event that the majority party is unhappy with or is opposed to.

SUPREME COURT

The lobbies also want it determined whether Parliament can pass a law to give effect to the minority opinion of the Supreme Court as a means to circumvent the findings on the majority of the apex court.

They further want it determined whether it is proper for Parliament to amend laws to defeat legal actions pending for determination before courts or exonerate a person from criminal liability so as to overthrow tenets of good governance, prudent use of public resources and accountability.

"This matter requires a hearing at the earliest opportunity because its object will be defeated as soon as possible. This is because the case seeks to invalidate Elections (Amendment) Act, 2017 passed by Parliament on October 10," said Mr Waikwa.

The lobbies claimed that the amendments significantly confuse the relevant laws on elections including regulation of some aspects that relate to the ongoing petitions challenging the August 8 polls.

CONFUSING

They argued that the changes made to the election laws are confusing in regard to the laid down principles of the Supreme Court on critical constitutional aspects that are relevant in the adjudication of numerous election petitions before the High Court and magistrates' courts.

The amendments were instigated by the decision of the top court on September 1 to nullify the August 8 presidential election results on grounds that it was massively tainted with irregularities.

The Bill on the disputed law was forwarded to President Uhuru Kenyatta on October 13 for assent but he did not sign it within the 14 days as stipulated in the law or return it back to Parliament.

BOYCOTTED DEBATE

The opposition refused to debate the said Bill which was largely sponsored by the Jubilee party.

One of the effects of the changes made in that law is that it enables the Independent Electoral and Boundaries Commission (IEBC) to announce the results of the presidential election in the absence of the chairman.

Other changes effected in the disputed law include one which stipulates that if there is a discrepancy between the manual and electronically transmitted results, the manual results prevail.

The new law also stipulates that failure to transmit the results electronically shall not be used to invalidate the result.

The commission will also be required to announce results only when it has all the forms 34B from all the constituencies.

Activist Okiya Omtatah has also challenged this law and wants sections of it quashed.

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