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Case against Kenya law promulgation dismissed

Tuesday August 24 2010

Members of Kenya Armed Forces gather at Uhuru Park, Nairobi to rehearse for the big ceremony when when the new Constitution will be officially proclaimed. WILLIAM OERI | NATION

Members of Kenya Armed Forces gather at Uhuru Park, Nairobi to rehearse for the big ceremony when when the new Constitution will be officially proclaimed. WILLIAM OERI | NATION 

By JILLO KADIDA

Attempts by a polling agent to curtail plans to bring into effect the new Constitution on August 27 have flopped

This follows High Court judge Lady Justice Hannah Okwengu's decision to throw out a case filed by Mary Ariviza against Friday's promulgation of the new law, for lack of jurisdiction.

However, one remaining case by the same person is still pending before the referendum court.

Dismissing the case, the judge said the High Court lacked jurisdiction to deal with cases relating to Constitution and the entire review process.

To reach her findings, the judge relied on Section 60 (a) of the Constitution which vested the powers to deal with cases challenging the Constitution to the Interim Dispute Resolution Court and in effect, suspending the power of the High Court over such matters.

“Section 60 (a) suspends powers of High Court to deal with matters relating to the Constitution. There was deliberate action on the part of legislature to create a special court to deal with cases challenging the Constitution,” said the judge.

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She added: “That special court is the right forum for her (Ms Ariviza) to seek redress. I throw out the case.”

Justice Okwengu’s decision arose out of a case filed by Ms Ariviza wanting the promulgation of the new constitution stopped because she believes that the final referendum results were not published in accordance with the law.

Ms Ariviza, who describes herself as a representative of the Church at both Muthangari and Westlands polling stations in the recently concluded referendum, is also seeking for an order to nullify a gazette notice dated August 6, in which the results were published.

And why? She says this particular gazette notice purports to be a certificate of results of the referendum yet it does not conform to Schedule 2.

The final result certificate ought to indicate the total number of votes cast in support of the Constitution and those cast against it, and it should be signed by the chairman of the Interim Independent Electoral Commission.

The certificate should also indicate whether or not the new Constitution has been ratified.

This was objected to by the Attorney-General and Interim Independent Electoral Commission on grounds that the court didn’t even have powers to grant orders sought and as a result the case is a waste of time.

In her response to the issue on jurisdiction, Ms Ariviza said the powers bestowed upon Dispute Resolution Court does not include one to quash a gazette notice and that is what she is seeking.

However the court on Tuesday held that her complaints relate to the conduct of referendum and that issue can be addressed before the Interim Dispute Resolution Court and not the High Court.

And immediately the judge finished reading her ruling, Ms Ariviza through her lawyer Judy Madahana applied for permission to appeal against the decision.

This was granted.