The High Court has declared several amendments made to the electoral law and the Independent Electoral and Boundaries Commission (IEBC) Act last October invalid.
The laws were passed controversially last year as Kenyans were readying themselves for the repeat presidential poll which was boycotted by the opposition coalition, the National Super Alliance.
However, Katiba Institute and the Centre for Open Governance (Africog), among other bodies, moved to court to challenge the constitutionality of the amendments.
The petitioners sued the Attorney-General and the Government Printer.
“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,” Justice Chacha Mwita ruled.
Justice Mwita ruled that all the amendments made to the IEBC Act, namely 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 were constitutionally invalid.
With regard to the Elections Act, 2011, the court said the petitioners persuaded the court that the amendments introduced to Section 39(1) (C), (A), 39(1D), 39 (1E), 39(1F), 39(1G) and the entire Section 83 failed the constitutionality test.
“I, however, find no fault in the amended sections 39(2), 39(3), 44(5) and 44A of the Elections Act, 2011,” Justice Mwita ruled, adding, “Sections 2, 7A(4), 7A(5), 7A(6) of the IEBC Act, 2011 and paragraphs 5 and 7 of the second schedule to the Act are constitutionally invalid.”
NULLIFIED AMENDMENTS
Section 39(1) (C) stated that the commission shall for purposes of a presidential election, electronically and manually transmit the tabulated results for the president from a polling station to the constituency tallying centre and to the national tallying centre while Section 39(1D) stated that where there is discrepancy between the electronically and manually transmitted results, the manually transmitted results shall prevail.
Section 39(1E) said that any failure to transmit or publish the election results in the electronic format shall not invalidate the result announced and declared by the respective presiding and returning officers at the polling and constituency centres.
Section 83 had barred the court from cancelling the results of an election if it conforms with the law and if the non-compliance did not substantially affect the result of the election.
The amendments to the IEBC Act had dropped the requirement that the chairperson be a person who is qualified to hold the office of judge of the Supreme Court. It also made non-lawyers eligible for the IEBC chairman’s post.
The amendment also elevated the IEBC vice-chairperson to head the commission in the absence of the chairperson.
And if both the chairperson and the vice-chairperson are absent, the commissioners present were allowed to elect one of them to act as chairperson. The changes further reduced the quorum of the commission from five to half of the existing members but not less than three.
If there is no unanimity on a decision, matters would be decided by a majority of the commissioners present through voting.