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Why it'll be hard to annul presidential poll in Kenya

Friday November 3 2017

Supreme Court judges

Kenya's Supreme Court judges. Judges can’t promote democracy on their own. PHOTO | FILE | NATION MEDIA GROUP 

SAMWEL OWINO
By SAMWEL OWINO
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The controversial election bill that is now law has sealed all loopholes that will make it nearly impossible to overturn a presidential election win in future.

Among the significant provisions of the new law gazetted on Thursday is a clause that would make it difficult for the Supreme Court to annul the election of the president based on minor inconsistencies.

FORMS

It states: “A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that (a) the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and (b) the non-compliance did not substantially affect the result of the election."

The Bill also sought to protect the result from being annulled on the basis of inconsistencies in the result forms as long as they are not meant to mislead.

It states: “A form prescribed by this Act or the regulations made thereunder shall not be void by reason of a deviation from the requirements of that form, as long as the deviation is not calculated to mislead.”

It also provides that a court shall not declare an election void for non-compliance with the law if it appears that the election was conducted in accordance with the principles laid down in the Constitution and that the non-compliance did not substantially affect the result of the election.

NASA

Where there is a discrepancy between the electronically transmitted and the physically delivered results, the commission shall verify the results and the result which is an accurate record of the results tallied, verified and declared at the respective polling station shall prevail.

The law was instigated following the decision by the Supreme Court to nullify the August 8 presidential results on grounds that it was massively tainted by irregularities and illegalities.

The new law was passed by Jubilee MPs and senators after their National Super Alliance (Nasa) counterparts boycotted the sittings, saying they did not want to be party to an “illegality”.

Civil societies have already filed a case challenging the new law.