AG ordered to amend law on election results

AG Prof. Githu Muigai. Photo/FILE

What you need to know:

  • In his observation, the judge said the Act itself was constitutional, although he contended that it appeared worded in a language that is difficult to follow, ambiguous, contradictory or impossible to apply.

The Attorney General has been directed to amend the Elections Act to provide for a reasonable timeline within which the gazettement of election results should be done.

The High Court in Mombasa ordered the AG to initiate the legislative amendment to section 76 (1) of the Act to be enforced by the Independent Electoral and Boundaries Commission (IEBC).

The section states that “a petition shall be filed within 28 days after the date of publication of the results of the election in the gazette notice”. It does not prescribe when the notice should be published.

According to Mr Justice Vincent Odunga, left as it is, the section may be a source of mischief, uncertainty and absurdity.

However, he declined to declare the section unconstitutional, saying it was enacted by Parliament in trying to fulfil its mandate in line with Article 87(1) of the Constitution.

In his observation, the judge said the Act itself was constitutional, although he contended that it appeared worded in a language that is difficult to follow, ambiguous, contradictory or impossible to apply.

What was unconstitutional however was the requirement by the section to merely require that the results be gazetted without imposing any timelines as to when gazettement was to be done, he said.

“It is therefore not necessarily rendered unconstitutional since it only gives rise to questions of interpretation by the court.”

The judge posed: “What is the court expected to do when confronted with such circumstances?”

He noted that in order to uphold the values of the Constitution and where an Act of Parliament exhibited certain deficiencies which made it uncertain and insufficient to properly realise the constitutional aspirations, the court would be perfectly entitled to “read-in” the omitted words.

Constitutional objectives

This is intended to bring the legislation in line with the constitutional aspirations without declaring it unconstitutional.

Justice Odunga said that if such amendment was not undertaken within the next 60 days, the said section would be deemed to contain a requirement that the IEBC was to gazette the results of the elections under section 76(1)(a) of the Elections Act within seven days of the announcement of the results by the Returning Officer.

The judge made the order as he delivered a ruling on an application by Lunga Lunga MP Khatib Mwashetani to strike out a petition filed against him by two voters.

Another High Court judge, Mr Justice Fred Ochieng’, also made a similar observation last week while delivering a ruling on an application by Mombasa Governor Hassan Joho to strike out a petition against him by Mr Suleiman Shahbal.