Bid to change election laws on petitions sparks dispute

A silent war could be brewing between the administrative arm of the Judiciary and the judges over attempts by the Bench to amend the election laws on petitions.

The dispute spilled over to the public after a member of the Judicial Service Commission (JSC), Professor Tom Ojienda, questioned the constitutionality of the Election Laws (Amendment) Bill 2017.

“I am writing to express my grave concern on the Miscellaneous Election (Amendment) Bill 2017,” reads Prof Ojienda’s petition to the Speakers of the National Assembly and the Senate. “The Bill threatens our fledgling democracy, fundamental freedom in the Bill of Rights and political stability of our republic.”

The Bill, which is at the Second Reading stage in the National Assembly, seeks to amend the election law by allowing only one appeal in an election petition.

In effect, it means that the Supreme Court will only hear and determine the presidential election petition while those arising from disputed election of governors, senators, Members of Parliament and Woman Representatives will end at the Court of Appeal.

PRESIDENTIAL ELECTION

After the March 2013 General Election, 188 poll-related cases were filed in the courts for determination, led by the presidential election petition by Cord’s Raila Odinga challenging the election of Jubilee coalition’s Uhuru Kenyatta.

Twenty of the petitions arose from the election of governors, 13 senatorial, 70 National Assembly and nine cases relating to the election of woman reps. Cases relating to the election of Members of the County Assembly (MCAs) were 67 while for Speaker of County Assembly there were five.

Out of these, 24 were allowed and 115 dismissed on the weight of arguments before the courts. Seventeen cases were withdrawn and 31 struck out on technical grounds.

A number of the 188 cases were allowed or dismissed by the Supreme Court after aggrieved parties sought the court’s interpretation of the Constitution. 

Even though the Bill is claimed to be the brainchild of the Bench, led by Chief Justice David Maraga, it was introduced in Parliament by Justice and Legal Affairs Committee chairman Samuel Chepkonga.

RELINQUISHED POSITION

Before his appointment to the position of Chief Justice, Mr Maraga was the chairman of the Judiciary Committee on Elections, a position he relinquished soon after he succeeded Dr Willy Mutunga as CJ. The committee is now chaired by High Court judge Msagha Mbogholi.

And even though the letter bears the letterhead of Prof Ojienda’s private law firm, the Nation has learnt that there has been a brewing conflict between JSC — of which the petitioner is a member, representing the Law Society of Kenya (LSK) — and the Bench.

“Some people, it seems, have been blinded by power and think they can do that without the commission,” a source in JSC said.

The Bench had “totally bypassed the commission for reasons only best known to them” to develop the Bill, the source added.

PROPOSED AMENDMENTS

“There are claims that the proposed amendments were done without involving the JSC,” former LSK chief executive Apollo Mboya told the Nation.

Prof Ojienda says he can no longer keep quiet while the law is being mutilated just months to the August 8 General Election.

“The current and consequent possible outcomes dictate that I should, before the door shuts on reason and promotion of national interest, alert you to the danger that may be lurking in the corner if the proposed legislation under consideration is enacted into law,” Prof Ojienda says in the petition.
He adds that the proposals are in disregard of the precedence set by the Supreme Court after the 2013 elections that it has jurisdiction to hear all appeals arising from poll petitions.