Kivuitu in court bid to stop ECK dissolution

Electoral Commission of Kenya chairman Samuel Kivuitu (ECK ) and 21 commissioners have moved to court seeking to stop Government’s decision to disband the electoral body.

They want the court to issue orders to restrain the government from commencing any executive or legislative action to disband the ECK and send home its commissioners.

The commissioners have said that neither Government nor parliament has powers under Section 47 of the constitution to amend Section 41 of the Constitution to allow it disband ECK.

For ECK to be disbanded and its commissioners removed from office, they said, there is a proper procedure to be followed which is provided for in Section 41 of the Constitution.

Section 41 of the constitution says that if any question of inability is raised in relation to a commissioner or misconduct is alleged then the matter is to be referred to a tribunal.

And it also says that for an ECK commissioner to be removed from office then the tribunal has to give recommendations after hearing the allegations against the particular commissioner.

If the scheme to disband ECK materializes then it would mean that parliament can use the power of amendment under Section 47 of the constitution as though it is analogous to the verdict of the tribunal envisaged under section 41 of the constitution, said the commissioners.

Under section 29 of the National Assembly (powers and privileges) Act courts have no powers to stop the house from making laws.

The suit by the commissioners comes after the commission led by South African judge Johann Kriegler, which investigated last year’s disputed presidential election, made the recommendation that ECK be radically reformed and replaced with a new body composed of a lean policy making board.

The commission also recommended that the new body which should replace ECK should be properly empowered to perform its functions.

It said the current body lacks the necessary independence and functional capacity to discharge its constitutional mandate because of weaknesses in its manner of appointment, composition and management system.

On Monday, through their lawyer Kibe Mungai, the commissioners said the scheme to remove them from office is a recipe for a constitutional crisis.