Will proposed laws protect sanctity of elections?

Following the Supreme Court decision in which the declaration of election of President Uhuru Kenyatta was annulled, the President’s party had promised to make some amendments to the Elections laws to facilitate the conduct of elections in future.

The Election laws (Amendment) Bill 2017 was introduced into the National Assembly on Thursday. The Bill’s declared purpose is the amendment of the Elections Act and the Elections Offences Act to provide for proper conduct of the operations of the Independent Electoral and Boundaries Commission and for effective management of elections. 

A number of sections of the Bill are intended to rearrange the managerial architecture of the IEBC. Firstly, it intends to change the current law which indicates that the chairperson of the IEBC must of necessity be a lawyer qualified to be appointed a judge of the Supreme Court.

QUALIFICATION

As currently structured, IEBC appears to be exposed in this regard because the chairperson is the only one who bears these qualification among all the seven commissioners.

This means that if for some reason the chairman were to resign or be unable to perform his functions as such, the IEBC would be unable to proceed as none of the other commissioners would be qualified to take up the chairman’s mantle.

The country would be in a state of limbo because the process of appointing a chairperson in itself would take time and would not possibly be completed before the repeat elections scheduled for October 26. In this regard, therefore it can be said that the intended amendments is well-intentioned.

The other changes proposed on the IEBC relate to the management of affairs of the commission.

The Bill intends to change the modus operandi of the commissioners to provide that the vice chairperson may depute and performs the functions of the chairperson’s in the latter’s absence. It goes ahead to state that even in the absence of both the chairperson and his vice, any commissioner may stand in and perform the functions of the chair. 

GOVERNANCE ISSUES

In addition to this, is a change to the quorum for meetings of the commissioners. It currently stands at five but the Bill intends to reduce this to at least three commissioners. This governance mechanism for commissioners meetings could create a situation where any three commissioners could claim to conduct the commissions meetings by themselves and forment dysfunction within the IEBC.

Besides the corporate governance issues, the Bill seeks to provide that any commissioner could potentially be a chair of the commission and undertake any of the chairperson’s functions. A reading of Article 138(10) of the Constitution leads me to doubt whether this license intended to be given to any Commissioner would pass constitutional muster. This is because that Article is explicit that the declaration of the results of the presidential elections must be made by the chairperson of the commission. There does not appear to be any room that this could be performed by even the vice chairperson, leave alone any other commissioner.

The Bill further affirms that results shall be transmitted manually and electronically from the polling station to the constituency and the national tallying centre respectively.

MANUAL TRANSMISSION

But where there is a difference between the two modes of transmission, the manual transmission system shall prevail. This is clearly intended to skirt around the judgment of the Supreme Court that both methods of results transmission should be used and that the absence of one for verification could be a ground for nullification of the elections.

In fact, the Bill goes ahead to declare that the failure to transmit the results electronically shall not be a ground for nullification of an election in the event of a petitions being filed.

This will be contentious.

The other significant amendment is that of section 83 which whose interpretation was contentious in the Supreme Court.

SUPREME COURT

Section 83 as currently drafted  was interpreted by the Supreme Court in the presidential petition to the effect that a party challenging an election result needs to prove that either there were serious irregularities or that there were irregularities which affected the result. At the Supreme Court the IEBC and President Kenyatta’s lawyers had sought to convince the court to read these two conjunctively to mean that irregularities in themselves would not result in the annulment of an election result, unless the petitioner also proved that the irregularities interfered with the results in that they affected the numbers which would have reduced the victor’s margin or increased the challenging candidates votes to overtake the person declared victorious in the election.

The proposed amendment seeks to remove the word “or” from that section and to replace it with the word ‘and” with the intention that the requirement will now be that the petitioner must prove the irregularities and the effect they would have had on the number of votes. It effectively seeks to reverse the interpretation that the Supreme Court gave to section 83 of the Elections Act. The result of this is to make it harder to challenge a declaration of election results.

PRESIDENTIAL ELECTION

Another issue of interest is that  for a party who contested a presidential election whose result is subsequently invalidated to contest the repeat election, that candidate must have been a party to the petition in which the presidential election is declared invalid. The intention here is difficult to state because the subsection goes ahead to state that, however, if the petition is made by a third party who was not a candidate election, then all the candidates in the presidential election which is invalidated would be candidates in the repeat poll.

A proposed amendment to the Election Offences Act which seeks to make it a crime for any presiding or returning officer to fail or refuse to fill in or sign the Election documents. This will be an offence for which the guilty party would be imprisoned for 5 years upon conviction. This would appear to be well intended to prevent sabotage.

 The writer is the Head of Legal Service at Nation