Court suspends law on party hopping

Friday February 24 2017

Justice John Mativo at the High Court in Nairobi on February 9, 2017. PHOTO | PAUL WAWERU | NATION MEDIA GROUP

Justice John Mativo at the High Court in Nairobi on February 9, 2017. PHOTO | PAUL WAWERU | NATION MEDIA GROUP 

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Politicians may now be at liberty to freely defect from one party to another until 45 days to the August 8 General Election.

This comes after the High Court on Thursday temporarily suspended implementation of a law that tames politicians from party hopping in the run up to the polls.

The Council of Governors had moved to the court challenging the new election law. They said the law contains a problematic unconstitutional section that bars party hopping as far as 120 days to the polls.

Justice John Mativo issued an order suspending Section 28 of the new election law. “Pending the hearing and determination of this case, an order is hereby issued staying the implementation of Section 28 of the elections Act No 24 of 2011 as amended by the provisions of the Elections Amendment Act 2017,” he said.

The judge directed the governors to give copies of the case documents to the respondents: the Attorney-General and the Independent Electoral and Boundaries Commission (IEBC). The case will be heard on March 9.

According to county bosses, this law locks out those with genuine justifiable reasons from defecting after the 120 days deadline hence it is disproportionate in a democratic society.

Through their lawyer Peter Wanyama, they said cleaning up of political parties cannot be achieved by unreasonably locking out others in an unfair manner and that the 45 days window period as initially provided by the law was sufficient enough for picking and choosing those to run in the elections.

“The mischief created by the amendment creates a ‘lockup’ of names and limit genuine and warranted party defection,” Mr Wanyama said.

Section 28 of the Elections Act 2011 stipulated that a political party that nominates a person for any election shall submit to the IEBC its membership list at least 45 days before the date of the polls.

However, Section 10 of the elections amendment Act 2017 has now replaced section 28 of the Elections Act 2011.

It now gives those who want to move from one party to another at least 120 days to do so for a general election while 45 days in the case of a by-election.