High Court Declares Jubilee Party Election Amendment Act Unconstitutional

  • The High Court on Friday nullified a number of the amendments made to the Elections Act by Jubilee party Members of Parliament (MPs).

    One of the major changes introduced by the Elections Laws (Amendments) Act 2017 was to reduce the acceptable quorum for the Independent Electoral and Boundaries Commission (IEBC) secretariat to three members from the statutory five.

    However, the High Court on Friday declared some of the changes drawn up by the ruling party soon after the August 2017 General Election unconstitutional.

    "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. 

    [caption caption="File image of IEBC commissioners"][/caption]

    Advocate Waikwa Wanyoike, representing Katiba Institute had sought to have the courts suspend the new laws which were gazetted on November 2, 2017.

    Other sections of the laws that were nullified include a clause in Section 6 of the IEBC Act that directed other commissioners to elect a temporary chairperson in the absence of the chairman and vice chair.

    The amended law sought to avert a crisis in case the chairperson resigned or was otherwise incapacitated and could not act as the national returning officer.

    The 2017 amendments proposed that the chairperson's position be stripped of mandatory powers to announce the presidential election results.

    Katiba Institute confirmed to Kenyans.co.ke that the section introduced to give prominence to manually transmitted results over those transmitted electronically was also nullified.

    Section 83 of the amendment was also repealed. The section sought to hinder the nullification of election results if the process had been lawful and if the irregularities reported were not significant.

    "I, however, find no fault in the amended sections 39(2), 39(3), 44(5) and 44A of the Elections Act, 2011.

    "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," the judge observed.

    [caption caption="File image of President Uhuru Kenyatta and his deputy William Ruto accepting IEBC certificates"][/caption]