Amendment Bill: A simplistic solution to a complex problem

In the current state of political polarisation in Kenya, the Election Laws (Amendment) Bill, 2017 is one that I should have been naturally inclined to give unqualified support but, in the face of the blatant manner it champions partisan political justice, it would seem unpatriotic and a betrayal of sacred constitutional principles for me to say all is well. 

Strictly speaking, the Constitution empowers Parliament to enact legislation and even amend the Constitution in order to provide for and uphold the rule of law in all matters of governance including elections.  Thus Parliament has acted within its constitutional mandate in publishing the Bill “to provide for the proper conduct of the affairs and business of the Independent Electoral and Boundaries Commission and for effective management of elections”. 

This Bill has been greeted with anger and disbelief for the obvious reasons that the content of the Bill leaves no doubt that its main objective is to address the unique legal and political challenges facing the fresh presidential election scheduled to be held on October 26, 2017. 

TECHNICIANS

In short, the Bill is a perfect job of legal technicians given that it proposes a simplistic solution to a complex problem but one wonders whether it offers the wise and credible redress to the dangerous constitutional crisis staring at Kenya if the October 26, 2017 fresh presidential election aborts for whatever reasons. 

Broadly speaking, the Bill sponsored by Jubilee Party seeks to address five issues. First, it addresses professional qualification of Chairman of IEBC and conduct of its business. Secondly, it seeks to change the mode of transmitting election results. Thirdly, it raises the threshold of nullifying elections.  Fourthly, it makes provisions to govern the conduct of fresh election pursuant to Article 140(3) of the Constitution.  Fifthly, it makes it an electoral offence punishable by up to five years’ imprisonment for a presiding or returning officer to knowingly or willingly fail to sign, complete, falsify or submit electoral results forms.

The Bill is based on a correct assessment that Nasa’s strategy is to fight for power in a crisis likely to be triggered by successful subversion of the fresh election instead of trying to win it. 

POISONOUS CHOICES

Hence the Bill gives Nasa’s candidate, Mr Raila Odinga, two poisonous choices. First, if Mr Odinga does not want the fresh election, he must formally write to IEBC to withdraw, otherwise a good or bad election will proceed and declaration of the winner made by hook or crook. 

Secondly, if Raila withdraws his candidature, then IEBC will have to declare Mr Uhuru Kenyatta as duly elected President without conducting the fresh election.

Since the constitutional basis of these choices for Mr Odinga is not apparent, there are two foreseeable complications in the Jubilee strategy.  First, in view of the reservations of Mr Wafula Chebukati about the prudence of this Bill, the question arises whether him or any other member of the Commission will play ball, if the fresh election does not meet the standards set out in Articles 81, 86 and 138 of the Constitution. Secondly, how will the Supreme Court react to a bad or partially subverted fresh election in the inevitable presidential election dispute in November?

PARLIAMENT

There are four standards to determine whether this is a good or bad Bill for its declared purpose. First, any law enacted by Parliament must be consistent with the Constitution and promote its purpose, values and principles.  Secondly, IEBC is required to conduct elections in accordance with the Constitution and written law which should be in place at least six months to the election. In other words, there is presumption that election laws will not change after IEBC has issued an election notice.

Thirdly, the Constitution gives the courts a free reign to determine validity of any election.  Fourthly, and most importantly, a Bill should be founded on the correct diagnosis of the problem or mischief it seeks to solve or cure. 

In applying these four standards, it is only fair to mention that for purposes of the 2017 General Election, Kenya’s higher judiciary has engaged in so frequent and conflicting interpretation of electoral laws that neither IEBC nor the contestants can tell with precision what the law is or means.

In effect this amounts to an invitation to Parliament to intervene with the obvious advantage that gives to the majority.

CYNICAL

In my humble opinion, there is a cynical and disturbing view in which the drafters of the Bill view the Constitution as an inconvenience or obstacle that Parliament should circumvent or trifle with.

I hate to say this, but I suspect this mindset could well have tilted the scales against Jubilee Party when the Supreme Court invalidated Uhuru’s victory.

It behoves objective supporters of Jubilee to adopt a strategy that communicates to the rest of Kenyans that even when they do not love the Constitution much, they nevertheless defer to its commands and will always strive to conduct business in accordance with dictates of the Constitution.

Viewed this way, the Bill can be improved in five key respects. I will dwell on two of them here.

ELECTIONS

First, the ultimate job of IEBC chairman is to certify that elections have been conducted in accordance with the written laws of Kenya.

This is a classic lawyer’s job in the same way that an architect issues a certificate of occupation to confirm a house has been built in accordance with all applicable building standards.

It is obviously a grave mistake that out of seven IEBC Commissioners, only one is a lawyer but since the Constitution allows for up to nine commissioners, Parliament should simply amend the IEBC Act to secure appointment of two more lawyers.

Secondly, since the Court of Appeal interpreted Article 86 and 138 of the Constitution to mean that election results declared by Constituency Returning Officers are final, the requirement of electronic results transmission should simply be done away with to avoid hackers.