Here is my take on the Election Laws (Amendment) Bill that is currently before the Kenyan Parliament.
1. The proposed amendment to the definition of “chairperson” of the IEBC (as read with the proposed amendment to section 6 of the Independent Electoral and Boundaries Commission Act) offends the Constitution in two ways. First, the amendment conflates “chairperson” with “member” of the IEBC when article 250 (2) of the Constitution envisions that every constitutional commission shall have a chairperson and members. Secondly, the amendment would effectively/potentially enable an ordinary member of the IEBC to declare presidential election results when article 138 (10) of the constitution reserves this function to the chairperson of the Commission. The question here is whether Parliament can enact a law that permits an ordinary member of a commission to perform a function which the Constitution vests in the chairperson of the Commission.
2. The proposed amendment to section 6 (1) of the Independent Electoral and Boundaries Commission Act will remove the requirement for the IEBC chairperson to be a lawyer who is qualified to be a Judge of the Supreme Court. The amendment will also permit persons who are not lawyers to be appointed chairperson of the IEBC. While there is nothing patently wrong about allowing other professionals to head the IEBC, its constitutional and statutory functions naturally point to the need to have a serious legal mind heading the Commission. The amendment also departs from established norm not just in Kenya but in most countries with a common law legal system.
3. The proposed amendment to paragraph 5 of the Second Schedule to the Independent Electoral and Boundaries Commission Act will reduce the quorum for transacting business at the IEBC from five to three members. While this may be technically tenable, there is a problem. The total membership of the IEBC is seven. If three constitute a quorum, it means a minority composition of the IEBC could make decisions that bind the majority. In practical terms, with the quorum reduced to three, it means two commissioners could make binding decisions for the IEBC when the law provides for a membership of seven. Matters get even more interesting with the proposed amendment to paragraph 7 of the same schedule, which allows a majority of the members present and voting to make binding decisions for the IEBC. Whether this is unconstitutional, democratic or even logical is debate for another day.
4. The proposed deletion of section 29 of the Elections Act will enable a presidential candidate to be nominated by persons from different political parties. It will also allow independent candidates to be nominated by persons who are members of political parties. This amendment is unconstitutional to the extent that it makes nonsensical the political party system as the mainstream mechanism for canvasing for elective offices. It will also erode the idea of discipline and loyalty to and within political parties.
5. The proposed section 39 (1D) of the Elections Act (and the related amendments) states that in the event of discrepancy between electronically transmitted and manually transmitted results, the manually transmitted results shall prevail. The amendment is misconceived and arguably unconstitutional in three cardinal respects. First, it ignores the historical context for the use of technology in our elections as set out in the Kriegler Report. Remember the late Samuel Kivuitu lamenting that some returning officers had disappeared with the manual results in 2007, including returning officers just a stone’s throw from the national tallying centre? Secondly, the proposed section assumes that the manual election results are incapable of manipulation, contrary to what we painfully learnt in 2007. Put differently, a mischievous presiding or returning officer could electronically transmit the correct election result but manually transmit a fraudulent result, making a complete mockery of this amendment. Thirdly, the amendment runs afoul of the provisions of article 86 (d) of the Constitution, which requires the IEBC to put in place appropriate structures and mechanisms to eliminate electoral malpractice. Indeed, the infusion of technology into our electoral processes was largely informed by this constitutional imperative.
6. The proposed amendment to section 44 (5) of the Elections Act will make it possible to hold sham elections. In particular, it will remove the obligation on the part of the IEBC to (inter alia) test, certify and audit its ICT system. It will also remove the obligation to grant access to the electoral system software source codes. It is not hard to see what inspired this proposed amendment. It stems from dissatisfaction with the orders made by the Supreme Court granting the Petitioner partial access to the IEBC’s electronic systems and platforms. I don’t know why anyone who believes in free, fair and transparent elections would want to make the amendment, but that is a debate for another day.
7. The proposed amendments to section 83 of the Elections Act are unconstitutional in multiple respects. First, they purport to require persons who file an election petition to prove both non-compliance with the principles set out in the Constitution and that such non-compliance affected the results. This offends the provisions of Article 2 (4) of the Constitution. It also offends the provisions of Articles 10, 38, 81 and 86 of the Constitution. In short, it creates room for the holding of sham elections, such as those we have witnessed in Uganda, Burundi, Rwanda etc. Secondly, the amendments purport to excuse all irregularities in election declaration forms as long as they are not calculated to mislead. The thing is, only the respective presiding or returning officers would know whether the irregularities were designed to mislead. The amendments would also permit the situation we saw at the Supreme Court, where one could not tell the official Forms from the unofficial or forged ones.
8. The proposed section 86A of the Elections Act purports to say who can and who cannot run in a fresh election in the event a presidential election is nullified by the Supreme Court. The problem here is that there is no constitutional basis for purporting to restrict who can and who cannot run in the fresh election. Further, the proposed amendment is based on obita dicta from the discredited decision in Presidential Election Petition No. 5 of 2013. The thing is, of the various types of “fresh election” envisioned in article 138 to 140 of the Constitution, only one has a constitutional limitation on who can run and who cannot run. The one addressed by the proposed amendment is not one of them.
9. The proposed section 6A of the Election Offences Act seeks to punish presiding and returning officers who are responsible for errors and omissions in election result declaration forms. The penalty is imprisonment for a term of five years. The ironical bit is that according to the amendment bill, those same errors and omissions, which would land one in jail for five years, cannot invalidate an election.
What am I trying to say? Well, I have a knack for strong language. But you must pardon me. I know the heartache from the decision of the Supreme Court is real in some sections of the political class. But the Election Laws (Amendment) Bill 2017 currently pending before Parliament is the most stupid and dangerous legislative Bill I have come across in my short legal career.
By Muthomi Thiankolu
The author is a Partner at Muthomi & Karanja Advocates; a Lecturer at the University of Nairobi School of Law; and a member of the Retirement Benefits Tribunal