In the beginning of July, the Senate and the National Assembly approved a motion that established a Joint Parliamentary Select Committee meant to deal with matters relating to the Independent Electoral and Boundaries Commission (IEBC). This committee is meant to:
Inquire into allegations against the IEBC Commissioners and Secretariat.
If necessary, recommend legal mechanisms in which the Commissioners and Secretariat can vacate office in accordance with the Constitution
Recommend legal, policy and institutional reforms to strengthen the IEBC and improve the Electoral System and Processes so as to ensure the next elections are free and fair, and that they are administered in an impartial, efficient, simple, accurate, verifiable, secure, accountable and transparent manner.
And finally, on the basis of any findings and recommendations made, prepare a report and a draft bill or draft bills.
This Select Committee is also required to receive views from experts, members of the public, the business community, civil society, religious groups, political parties, county governments and any other persons on matters regarding the IEBC and the Electoral Process.
A gazette notice has invited the aforementioned people to make distinct presentations in any or all of the following Thematic Areas.
Thematic Area 1 – Allegations against the Commissioners and the Secretariat of the IEBC, specifically on the following
Credibility
Impartiality
Integrity
Independence
Thematic Area 2 – Recommendations on the legal mechanisms needed if the current Commissioners and Secretariat of the IEBC were to leave office in accordance with the Constitution.
Thematic Area 3 – Recommendations on the legal, policy and institutional reforms needed to strengthen the IEBC so as to ensure that the next elections are free and fair and administered in an impartial, efficient, verifiable, secure and transparent manner. The following should specifically be addressed.
The composition of the IEBC and the Secretariat
The appointment, term of office, terms of service and removal from office of the IEBC Commissioners and Secretariat.
Thematic Area 4 – Recommendations on the legal, policy and institutional reforms needed to improve the Electoral System and Processes to ensure transparent and free elections. The following should be addressed
Voter Registration
Voter Education
Nomination and Registration of Candidates
Campaign Management
Publicity and Media
Use of Information Communication Technology in the Elections
Voting Process
Transmission and Declaration of Election Results
Allocation of Special Seats
Election Observation, Monitoring and Evaluation
Dispute Resolution (Including Nominations and Petitions)
The East Africa Center for Law and Justice prepared two distinct memoranda (documents) to this effect on Thematic Area 3 and Thematic Area 4. We were given an opportunity to make an Oral Presentation before the Select Committee on Wednesday 27th July 2016.
The EACLJ, represented by Murimi Karani, highlighted the contents of our Memoranda and welcomed comments and questions from the members of the committee. The following were some of the issues of contention.
The swearing in of the President pending a Presidential Election Petition to the Supreme Court. Inquired by Senator Mutula Kilonzo Jr.
Voting at any poll station as opposed to the current system where you are tied to one polling station. Issue raised by Honorable Mishi Mboko.
The inclusion of voter education in the school curriculum. Supported by Honorable Junet Mohamed.
The deficiency of Identification Cards (ID Cards), registration of the ID Cards in tandem with voter registration and the use of IDs to vote thus doing away with the voters card altogether. Issue raised by Senator Beatrice Elachi.
Our suggestion to have the Party Lists of nominated candidates for special seats submitted before the elections and its effect on party hopping.
Our recommendation to have members of the IEBC appointed on a rotational basis and their number reduced to between three and five commissioners.
Below are the final drafts submitted to the committee
The year 2008 is regarded as one of the darkest moments of Kenyan history. In that year, over 1000 Kenyans lost their lives and over half a million more were displaced as a result of ethnic clashes. The dispute arose when Mwai Kibaki was declared the winner of the just concluded 2007 elections. Things calmed down when the National Accord and Reconciliation Act was signed, effectively creating a power sharing agreement between the incumbent President Mwai Kibaki and Raila Odinga who became the Prime Minister.
As one of the ways of healing the nation, the newly formed Coalition Government sought to bring about electoral reforms. The 10th Parliament disbanded the Electoral Commission of Kenya and replaced it with the Interim Independent Electoral Commission pending the promulgation of the new constitution.
The Constitution of Kenya 2010 established the current Independent Electoral and Boundaries Commission (IEBC). The Commission was founded in 2011 and is made up of nine commissioners. They were appointed by the two principals of the Grand Coalition Government and approved by the 10th Parliament. This was made possible through the enactment of the Independent Electoral and Boundaries Commission Act of 2011 and later, the revised Elections Act which governs elections. The Commissioners are to serve a six-year term beginning 9th November 2011, which would take them through to the end of the next general elections.
In recent weeks, Kenya has been caught up in political unrest following a call by the opposition demanding the disbandment of the IEBC. The Opposition argues that the electoral body has lost public confidence, alleging that the Commission is biased towards the current government. In a move designed to force the President's hand, the opposition have organized numerous demonstrations across the country. The President and the ruling Party have however insisted that they are going to stay within the confines of the law.
The IEBC is listed as a State Commission under Article 248 and is thus subject to Chapter Fifteen of the Constitution. It is not under the direction or control of any person or authority. By virtue of this provision, the IEBC Commissioners can only be removed from office by invoking Chapter Fifteen of the Constitution.
Article 251 of the Constitution of Kenya provides for the removal of the Commissioners as follows:
A member of a commission (other than an ex officio member), or the holder of an independent office, may be removed from office only for -
Serious violation of this Constitution or any other law, including a contravention of Chapter Six;
Gross misconduct, whether in the performance of the member's or office holder's functions or otherwise;
Physical or mental incapacity to perform the functions of office;
Incompetence; or
Bankruptcy.
A person desiring the removal of a member of a commission or a holder of an independent office on any ground specified in clause(1) may present a petition to the National Assembly setting out the alleged facts constituting that ground.
The National Assembly shall consider the petition and, if it is satisfied that it discloses a ground under clause(1), shall send the petition to the President.
On receiving a petition under clause(3), the President –
May suspend the member or office holder pending the outcome of the complaint; and
shall appoint a tribunal in accordance to clause(5)
The tribunal shall consist of –
a person who holds or has held office as a judge of a superior court, who shall be the chairperson;
at least two persons who are qualified to be appointed as High Court judges; and
one other member who is qualified to assess the facts in respect of the particular ground for removal.
The tribunal shall investigate the matter expeditiously, report on the facts and make a binding recommendation to the President, who shall act in accordance with the recommendation within thirty days.
A person suspended under this Article is entitled to continue to receive one half of the remuneration and benefits of the office while suspended.
Basically, while the demonstrators have the right to picket as provided for under Article 37 of the Constitution, there is only one legally authorized way of doing away with the IEBC. It is however not possible to disband the whole commission at once under the law. The commissioners can only be removed from office if the one desiring the removal is able to persuade the President, through the National Assembly, to establish a tribunal to investigate the commissioners' conduct. The investigations would focus on the individual culpability of each commissioner and the recommendations made thereafter don't necessarily have to be about the removal of the commissioners from office.
One of the most celebrated instruments of Kenya's new Constitution was the recognition of gender equality and the achievement of gender parity. To this regard, the Constitution introduced the principle that no more than two thirds of the members of an elective or appointive body shall be of the same gender.
In a bid to enforce this gender rule, the Constitution created 47 elective seats for women in the National Assembly, where each County constituted a single member constituency. These members are referred to as 'women representatives'. This however was not enough to fully ensure gender parity and so the Constitution went further under Article 27 providing that:
(6) To give full effect to the realization of the rights guaranteed under this Article, the State shall take Legislative and other measures, including affirmative action programs and policies to designed to redress any disadvantage suffered by individuals or groups because of post discrimination.
(7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.
(8) In addition to the measures contemplated in clause (6), the State shall take Legislative and other measures to implement the principle that no more than two thirds of the members of elective or appointive bodies shall be of the same gender.
Barely two and a half years after the promulgation of the new Constitution, Kenya held General Elections to give full effect to the provisions of the new Constitution. According to the Independent, Electoral and Boundaries Commission (IEBC), out of a total of 1908 aspirants for National Assembly seats, only 197 were women. And out of the 197 women, only 16 made it to Parliament to join the 47 County Women Representatives. At the County Representative Level, 623 women vied but only 85 were elected. In contrast, 1365 of their male counterparts were elected out of a total of 9287 male contestants. No woman made it to be elected as a Senator or Governor. Only one woman contested for the Presidency out of seven men and she garnered less than 3% of the vote. As it stands, both the National and the County Assemblies are still below the one-third gender representation threshold with less than 20% women representation.
The fifth schedule in the Constitution provided a timeframe of five years within which the legislation on the representation of marginalized groups was to be passed. That five years expired on the 27th of August 2015.
That provision was the basis upon which the Majority Leader of the National Assembly Hon. Aden Duale presented a Bill to amend the Constitution in July 2015. The Bill sought to have additional women in leadership if the election does not meet the required threshold of gender representation. If the threshold wasn't met, then the gap would be bridged by picking additional women as per party lists. Political parties would submit a list of members to be nominated. The Bill also targets to review the Elections Act, the Independent Electoral and Boundaries Commissions Act, the Political Parties Act, the County Governments Act and the National Gender and Equality Commissions Act.
The proposed law would lapse 20 years after the date of the second General Election held under the Constitution. The hope is that by that time, both genders will have been given a level playing field and will be able to compete on an equal plane.
The Constitution provides for an amendment by Parliamentary initiative under Article 256 as follows:
(1) A Bill to amend this Constitution –
May be introduced in either house of Parliament
May not address any other matter apart from consequential amendments to legislation arising from the Bill.
Shall not be called for second reading in either House within ninety days after the first reading of the Bill in that House; and
Shall have been passed by Parliament when each House of Parliament has passed the Bill, in both its second and third readings, by not less than two thirds of all the members of that House.
The struggle for women empowerment seemed to be a realistic goal when Hon. Duale's Bill came for a second reading on the 26th of April 2016. The Members of Parliament had already been called upon by the President and the Opposition Leader to show up and vote for the landmark Bill. But when it came to voting, it could only garner 195 supporters, 38 less than the threshold set by Article 256 in the Constitution. The Speaker of the National Assembly went to great lengths to ensure that as many MPs as possible would show up by stretching the lobby minutes. The Bill however was rejected by 28 MPs, while at least 24 Members who were present did not vote yes or no, nor did they abstain. Two Members abstained.
This turn of events would have meant that the Speaker declares the Bill "lost". As such, the Bill would have needed to wait for six months before being reintroduced, and then a further 90 days would have to pass before the first and second reading. He however invoked a rarely used standing order which states:
"When a Bill that requires a two third majority is not opposed by a third of the MPs, it can be subjected to a sitting vote within five sitting days."
The Bill will therefore be subjected to a second vote on the 5th of May 2016 with the assumption that the proponents of the Bill will have used the intervening week to lobby for their colleagues votes. The Speaker has excluded the day's morning sitting to give the whips time to convince MPs to vote for the Bill. Kenyans will expect to have their views well represented by the Members of Parliament and the passing of this Bill will probably be key in judging the success of the 11th Parliament.
Article 27 of the Constitution of Kenya 2010 recognizes that every person is equal before the law and has the right to equal protection and equal benefit of the law. The Constitution further espouses that women, youth, persons with disabilities and ethnic minorities are special groups deserving constitutional protection. Therefore the rights of women as being equal in law to men, and entitled to enjoy equal opportunities in the political, social and economic spheres cannot be refuted.
The Constitution obligates the state to take legislative and other measures, including affirmative action programs and policies to address the provision that 'not more than two-thirds of elective or appointive bodies shall be of the same sex'. Article 97 of the Kenyan Constitution describes the composition of the National Assembly. Of its 349 seats, 290 are for those elected from Kenya's 290 constituencies, 47 are for women elected to represent each county, and 12 seats for nominated individuals to represent youth, persons with disabilities and workers.
Despite these affirmative action measures, women's participation in the 2013 general elections remained very low. There were 19 women candidates running for senatorial and gubernatorial positions (out of 237 candidates). None of them were elected for these positions. Of the 290 elected National Assembly members, only 16 women were elected, only 5 were nominated out of the 12 positions and 47 County women representatives bringing the total to 68 women out of the 349 seats (19.48%) falling short of 49 of the 117 required for full compliance with the two thirds gender rule. In the Senate there are 18 women filling the 18 reserved seats under the Constitution (26.8%) which is 6.4% short of the constitutional requirement out of the total 67 seats.
The government sought the Supreme Court's advisory opinion in order to forestall a looming crisis in the event that the two-thirds gender rule was not achieved. The Supreme Court advised that the two-thirds gender rule would be realized progressively as opposed to immediately. However the Parliament was given up to August 27, 2015 to come up with legislation on how the two-thirds gender rule will be met in the 2017 General Election. There have been concerns about actualizing the two-thirds gender principle considering that we are past the Supreme Court deadline and the apprehension that it will be too expensive for the taxpayer, contributing to increased public spending. Additionally, the poor performance of women in the political arena has been largely hampered by the fact that the Kenya has been largely patriarchal.
In spite of this challenge, various working groups have come up with strategies that can be adopted to assist in the realization of the two-thirds gender principle. These are;
Capacity building of women to enhance their engagement in the political life.
Women to engage in cross party platforms as these are powerful avenues for uniting women beyond party lines and rallying them around a common agenda;
A strong women's movement and political will;
Women to register as members of political parties, seek leadership positions within parties, remain vigilant and participate in determining how party lists are drawn;
Women to use their strength in numbers to compel political parties to adhere to the quota provisions; integrating the struggle for gender equity with the struggle for democracy;
Women to identify male allies to help them lobby for the implementation of the quotas;
Gender responsive civic and voter education to share information with women and the community at large on the need to have women take up leadership positions;
Further, we can have the Constitution amended in the following ways as suggested by the Green Amendment Campaign:
Retain the current number of Constituencies at 290
Increase the number of Women Members elected in Special seats to 136 up from the current 47
The women MPs will be elected by the two adjacent Constituencies in each County in Counties with even number Constituencies; while counties with Odd number Constituencies will have the last three adjacent Constituencies
County assemblies fixed in the Constitution at 1450. Remove nominations in the County Assemblies; instead have the two adjacent wards in each Constituency elect one woman making a total of 725 women elected on the special ward seats.
Have a nomination of special interest groups to satisfy the 5% anticipated by the Constitution article 54 (2).
Have each county elect two senators, one man and one woman.
Have a sunset clause of 10 years on the special seats.
In the alternative, the number of Constituencies can be reduced to 210 and we can have each county elect two women as opposed to the current one, making a total of 94. When compared to other countries in the East Africa region, Kenya has the lowest gender representation in political and governance structures and this calls for affirmative action, more effort and political will in order to ensure that the spirit and intent of the gender provisions are realized across all political and social structures. The role of key players including political parties, Civil Society Organizations and the media are should also be encouraged in contributing towards the realization of the two-thirds gender provisions.
Chapter 14 of the Constitution of Kenya espouses on National Security. Of importance is Part Four of this section which establishes the National Police Service. Late last year, various occurrences struck to the core of Kenya's security and saw the sudden resignation of Inspector-General of Police Mr Kimaiyo and the replacement of Interior Cabinet Secretary Mr Joseph Ole Lenku with Kajiado Central MP Maj-Gen (Rtd) Joseph Nkaissery. The country's respective officials have now embarked on the process of vetting the nominated Inspector-General of Police Joseph Kipchirchir Boinett before he assumes office.
The National Police Service
Article 243(1) establishes the National Police Service (NPS) which consists of the Kenya Police Service and the Administration Police Service. The objects and functions of the NPS as expressed in Article 244 of the Constitution are, to:-
strive for the highest standards of professionalism and discipline among its members;
prevent corruption and promote and practice transparency and accountability;
comply with constitutional standards of human rights and fundamental freedoms;
train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and
foster and promote relationships with the broader society
The Office of the Inspector-General
Further, Article 244 creates the office of the Inspector-General (IG) who is to head the National Police Service. The IG is appointed by the President with the approval of Parliament, to exercise independent command over the entire National Police Service and perform any other functions prescribed by National Legislation. The IG may take lawful direction from the Cabinet Secretary responsible for police service with respect to policies relating to the National Police Service. Such directions are expected to be in writing. However, the IG is prohibited from taking orders from any person on matters relating to -
the investigation of any particular offence or offences;
the enforcement of the law against any particular person or persons; or
the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.
The office tenure of the IG is a single term of four years, after which the IG shall not be eligible for re-appointment. Lastly, the Inspector-General may be ejected from office by the President only on the following grounds:-
serious violation of this Constitution or any other law, including a contravention of Chapter Six which deals leadership and integrity;
gross misconduct whether in the performance of the office holder's functions or otherwise;
physical or mental incapacity to perform the functions of office;
incompetence;
bankruptcy; or
any other just cause.
The sitting IG will be expected to quell the spate of insecurity and terror that has engulfed the country and oversee reforms in the police sector.
Political temperatures have been high past few days with calls for a referendum flying left right from different quarters. The crisis so far has been the intent of these quarters as their calls for a referendum seem to be different. Already political battle lines have been drawn and the Jubilee government has accused the Coalition of Reforms and Democracy [CORD] of manipulating the calls for a referendum to push for its own political agenda. Initially the bid to push for more powers for Senators with regard to determining county revenue allocation was a uniting platform for senators from both CORD and Jubilee. Through its Senators, CORD seeks to change the Supreme Law of the land so as to increase allocation of funds to the county governments and enable the Senate realize more powers in deliberating the revenue allocated to the respective counties. This comes amid fears that there is a deliberate scheme to sabotage devolution especially through the creation of a Department of Devolution and Planning to be in charge of devolution. Those supporting a referendum feel that the 210 billion shillings allocated to the counties are insufficient to cater for county expenditures and instead 258 billion shillings is what will be required for effective development in the counties. CORD leader, Mr. Odinga has stated that the referendum would make it possible for county governments to receive more funds, empower the Senate and devolve many more functions of the national government However, Jubilee senators threatened to pull out of the bid due to CORD's decision to use the referendum to change the Presidential system of government to a Parliamentary one where MPs will transform themselves into an 'Electoral College' to elect the president. This was being fronted by a movement dubbed 'March 4 Movement'. The movement intended to amend Article 138 (4) of the Constitution which states; '...A candidate shall be declared elected as President if the candidate receives; (a) more than half of all the votes cast in the election; and (b) at least twenty five per cent of the votes cast in each of more than half of the counties... . This was to ensure that the next president is elected by an 'Electoral College' rather than by popular vote. In applying the Electoral College method, in order to be declared winner in a Presidential Election, one must receive at least more than half of the 431 college votes cast by MPs, senators, women representatives and governors elected in a general election. The members argued that the move will reduce the hostile tribalism, electoral fraud and marginalization of ethnic communities, which according to them are the main factors alleged to have compromised the 2013 General elections. CORD has however abandoned the latter calls for Constitutional amendments to change the country from a presidential to a parliamentary system, and now focused on the allocation of funds and more powers for the Senate. According to the Constitution in Article 257 (1), one million signatures from registered voters need to be collected for the referendum process to kick off.
Devolution was and still is a very exciting idea to many Kenyans, especially since it is an assurance of their participation in governance through decentralization. This refers to transfer of public authority and resources, including personnel from national to sub-national jurisdictions. This came with the creation of county governments, and hence the positions of Governors. These Governors are tasked with various duties. They are expected to be accountable for the management and use of County resources, as well as promote and facilitate citizen participation in the development of policies and plans, and delivery of services in the county, among other duties. Should the governor fail in executing his duties, he or she risks being impeached by Members of the County Assembly (MCAs). The recent upholding of the senate's decision to impeach the Embu Governor Martin Wambora by the Judiciary has cemented the doctrine of separation of powers among the three arms of government. The doctrine allows the three different arms of government, namely the judiciary, legislature and the executive to function independently without the interference of either arm. Further, the High Court's ruling in favor of the Governor's impeachment is an illustration of non-interference of the decision that was arrived at the county assembly. The incident has shed light on the removal of errant public officers from office, in this case the Governor. Article 181 of the Constitution provides for the removal of a county governor from office on the following grounds:
Gross violation of the Constitution or any other law;
Where it is believed that the governor has committed a crime under national or international law;
Abuse of office or gross misconduct; or
Physical or mental incapacity to perform the functions of office of the county governor.
In this instance, the Embu County Assembly initiated the process of impeaching the governor for contravening the Constitution and on grounds of gross violation of public finance and procurement laws." In another similar case, a Speaker of the county assembly of West Nyakach Ann Adul was last year impeached after members of the county assembly voted in favor of a motion to have the speaker removed from office for abuse of office and gross misconduct. The office of the Speaker of the County Assembly is a creation of article 177 (1) (d) of the Constitution. The Speaker forms part of the membership of the County Assembly which also includes members elected by registered members of wards, special seat members who ensure that the two-thirds gender margin gap is filled and members representing the marginalized groups.
Attempts to introduce post secondary school training for the youth at the National Youth Service (NYS) have kicked off following the introduction of a motion that will also see establishment of various National Youth Service outlets to facilitate the recruitment of form four graduates. The senate has proposed that such training be compulsory for all persons after the completion of high school education. The Senate however required the National Youth Service Centers to be upgraded before the compulsory training kicks off. The proposed training is intended to keep the youth occupied and assist them as they transition to further studies. The initiative hopes to address unemployment among the youth which has majorly occasioned insecurity and moral decadence as argued by the Senators.
The National Youth Service system, which was started in 1964 targets the unemployed, unmarried young people between the ages of 18-22. The scheme aims to increase young people's chances of getting employed by providing them with technical training and experience in projects such as building dams, roads, canals and other infrastructure. The NYS also acts as a reserve force for the Kenya Armed Forces and is deployed to provide assistance during national disasters such as fires, floods and terrorist attacks. The participants also engage in agricultural development, managing farms throughout the country that serve as models for surrounding farmers to learn the newest and most efficient farming practices. As currently structured, NYS takes in about 3,500 young men and women each year and has an average of 10,000 active youth participants at any one time. While engaging in national service projects, NYS members can also receive diplomas and certificates in a number of areas, ranging from one year certificates in auto mechanics to a three-year diploma in public accounting and electrical or mechanical engineering.1 The youth play an active role in nation building. Therefore, proper mechanisms need to be instituted to ensure that Article 55 of the Constitution is realized. The article provides that... "the State shall take measures, including affirmative programs, to ensure that the youth access relevant education and training; have opportunities and participate in political, social, economic and other spheres of life, access employment and are protected from harmful cultural practices."
Apart from addressing unemployment, the program will have many benefits for the youth. It will supplement the 8-4-4 education system in Kenya which mainly relies on providing academic curriculum. Students who leave high school at a very tender age will undergo comprehensive training that will enable them engage in economic development, and ensure young people have the opportunity and responsibility of participating in decisions that affect their lives. This is especially important as young people in Kenya are responsible for contributing to social and economic development. To achieve the intended plans, the Government should aim at expanding the mandates of the NYS so as to accommodate our Nation's Development Goals. It should be more pro-active and responsive to our country's needs and recognize as well as nurture talent among the youth. This will help in the attainment of economic and social rights.
4th March 2013 marked the first General Elections exercise under a new Constitutional dispensation. It was also recorded as the biggest election as Kenyans had to elect six different individuals at once. Most election observers reported that the elections were free and fair; however there were a number of petitions filed in courts immediately after results were released.
Filing of the petitions in courts started within the 28 day period stipulated in Article 87(2) of the Constitution, which totaled to 188. As of August 20th 2013, 120 out of the 188 petitions had been finalized. Needless to say the aspect of free and fair elections has been upheld through the hearing of the electoral petitions. To aid the process Chief Justice Willy Mutunga selected 98 judges and magistrates to hear the more than 180 election dispute cases. In addition Mutunga appointed Justice David Majanja to head the ad-hoc Election Disputes Resolution Division, which would co-ordinate the process. Article 87(1) of the Constitution states; '...Parliament shall enact legislation, to establish mechanisms for timely settling of electoral disputes.' Currently, the Constitution, Elections Act, Political Parties Act, IEBC Act, and Campaign Finance Bill ' (which is a contentious Bill that seeks to regulate campaign spending ahead of elections and referendums) all provide a legal framework for electoral dispute resolution. However, the presence of adequate legislation did not hinder problems and inefficiencies during the petition process. A breakdown of the 188 petition reveals that 56 were members of National assembly, 7 Senators, 5 Women Representatives, 3 county Assembly Speakers and 56 County Assembly Representatives. So far 35 petitions have been struck out on technical grounds while 25 Petitions have been withdrawn, 53 are pending judgment and formal withdrawing while 58 are still pending hearing. The petitions on which judgments have been delivered have brought out similar jurisprudence from the 2007 election petitions. Below is an analysis of few areas where the said petitions were filed.
The case in Mombasa
Mombasa Gubernatorial aspirant Suleiman Shahbal and a voter, Salim Karama moved to court to file a petition challenging the election of Ali Hassan Joho as the Mombasa County Governor, Hassan Omar as the Mombasa Senator and Badi Twalib as the Jomvu Member of the National Assembly. Joho sought to have the said petition struck out because of Suleiman's lack of compliance with the 28 day rule. Another issue which the court was faced with was when the 28 days starts being counted from. This has been one of the most controversial election petition and most eagerly awaited judgments. Most recently it was held that Shabhal failed to prove all allegations of fraud beyond reasonable doubt and therefore Joho maintained his seat as Mombasa governor. The judge ruled that the evidence induced in Court did not satisfy that alleged malpractices affected the outcome of the election hence the election was fair. This is after a back and forth of claims ranging from death threats to bribery and most interestingly it was claimed that Joho did not have legitimate degree papers. It is unpredictable whether or not the petitioner will use his right to appeal.
The Situation in Siaya County
Siaya Governor Cornel Rasanga has lost his seat after the High Court in Kisumu nullified his win, citing massive electoral malpractices. Rasanga was the first Governor to lose his seat following an election petition that had been filed by William Oduol, who lost in the March 4 elections. While declaring the same, Justice Aggrey Mchelule declared a by election, meaning that the people of Siaya will be going back to the polls soon.
Mavoko MP; the Case against Patrick Makau
The High Court dismissed the petition filed against Makau who won the Parliamentary seat for Mavoko. Petitioners had cited several election Malpractices which included vote buying, bribery and failure by their agents to sign forms 35 that had occurred during the election however the petitioners failed to prove the same beyond reasonable doubt. Judge Lillian Mutende held that it the burden of proof of all claims by petitioners squarely lay on their hands and that of their agents through their testimonial evidences. In the said case there was also the issue of unqualified Advocates acting on behalf of clients which was also similar in other election petition cases that were conducted in Kisii and Nyeri Counties. In the Mavoko case the Judge held that unqualified Advocates acting was in contempt of court and sought that the Law Society of Kenya take disciplinary action as the said individuals wasted the time of the court and acted in a manner that was an abuse of the court process. In Kisii County a petition was struck out because at the time of filing the advocate had not renewed his practicing certificate. All the acts stated are contrary to the provisions of the Advocates Act Cap 16 of the laws of Kenya.
Problems Faced and Arising Jurisprudence
The petition process has not been spared by challenges, they include;
Unqualified Advocates
Needless to say this has been a prominent issue in most of the election petitions that were filed after this round of elections. Petitioners have had some of their cases dismissed due to negligent acts from their advocates. The acts ranged from being inadequate to act and they were in contravention with the advocates Act cap.16 of the Laws of Kenya specifically section 31 and section 34 of the Advocates Act which deal with unqualified persons not to act as an advocate and unqualified person not to prepare certain documents or instruments. The said happened in Nyeri where one petition was thrown out on the grounds that at the time of filing of the petition by the advocate, he did not have his practicing certificate therefore qualifying him as being inadequate to act as provided for in section 31 of the Advocates Act. As the advocate acting on behalf of the petitioner did not have his practicing certificate at the time of filing the petition on April 9th but acquired them later on July 1st 2013. Similarly in Mavoko one of the Advocates acting had not renewed is practicing certificate. It was recently stated by the Secretary of the Law Society of Kenya, Apollo Mboya that they were waiting for the end of the election petitions in October to determine how many advocates will be facing disciplinary measures in regard to their misconduct in regard to election petitions.
Shortage of Judges
As stated earlier there were judges appointed by Chief Justice Willy Mutunga to deal with the over 180 election petitions. However there arose the issue of shortage of judges or judicial officers to deal with the cases especially in Mombasa where only two judges remained after previous judges who were stationed in Mombasa for some reason were no longer able to handle election petitions within the area.
Inconsistencies between the IEBC Act, the Constitution and the Election Act (issues of filing out of time)
There were several cases of interpretation that brought about a lot of controversy especially in regard to the Mombasa governor petition. Specifically reference was made to Article 87(2) of the constitution as read with section 76 of the IEBC Act there is a clear conflict of laws and Judges have held specifically in the case of Mombasa that petitioners cannot be punished for the conflict of laws that exists in the two pieces of legislation. I would however assume that in cases where there conflict between two pieces of legislation and where one is the constitution that automatically the constitution will always take precedent over the Act which in this case is the IEBC Act and Election Act. The golden rule is that the constitution being the supreme law of the land will always take precedence over the said act. The key issue that arose in regards to the said case in Mombasa was in relation to interpretation of the constitution particularly Article 87(1) which lays down a specific timeline for which an individual is meant to file an election petition. In this particular election petition it was claimed that Shahbal filed his election petition 34 days after the General Election which is out of the time stipulated in Article 87(2) of the constitution. This was however thrown out by The appellate court consisting of three judges dismissed Joho's submission and ruled that Shahbal had filed his petition within the time set by section 76 of the Election Act that is in harmony with Article 87. This brings me to the issue of reading or rather interpreting Article 87(2) of the constitution as read with Article 76 of the Elections Act which in regard to presentation of petitions states that
To question the validity of an election shall be filed within twenty eight days after the date of publication of the results of the election in the Gazette and served within fifteen days of presentation;
To seek a declaration that a seat in Parliament or a county assembly has not become vacant shall be presented within twenty-eight days after the date of publication of the notification of the vacancy by the relevant Speaker"
Another issue which the court was faced with was when the 28 days starts being counted from. The case has however not been finalized and it will be interesting to see what determination will be made by the court.
Burden of Proof
The burden of proving that a person is guilty of an election offence is on the petitioner and his witnesses. That burden cannot be shifted to the Respondents to establish that they did not commit such offences or malpractices. In regards to the issue of Burden of proof, I refer to the celebrated case of Hon. Joel Onyancha which dealt with the issue of bribery. In the said case it was stated that "clear and unequivocal proof is required to prove an allegation of bribery. Mere suspicion is not sufficient. It is true that it is not easy to prove bribery especially when it's done in secrecy. In such cases perhaps bribery may be inferred from some peculiar aspects of a case..." "A high degree of proof is required where vote buying and bribery allegations are concerned. The petitioners failed to do so in this case", observed the judge in the Mavoko case. It is an issue that arose in almost if not all election petitions as petitioners were placed with the burden to prove that election malpractices occurred.
Lack of Adherence to Election Act
This particularly refers to the time limit that has been set in the Election Act. Electoral disputes should be concluded within six months of being filed, pursuant to Section 75 of the Elections Act. So far there are by elections that have been set to be held on the 17th of October which is past the 6 month limit set out in the Election Act. This brings out the issue of the efficiency of the judiciary. The judiciary should strive to deliver timely judgments that adhere to the rules of Natural Justice which are equity and fairness. This lack of adherence could render the said by-elections illegal and contrary to law as they are acting outside the time limits that have been issued by Law.
The latest move by the Senate to sue the President in the Supreme Court after he assented to the Division of Revenue Bill indicates that the stalemate between the Senate and the National Assembly is widening. The Senate referred to the President's assent as a fundamental violation of the Constitution. The Bill was forwarded to the President by the National Assembly; however a plea to the President by the Senate to ignore it became futile. This move is alleged to be a threat to the realization of devolution. The Senate now wants the Supreme Court to give an advisory opinion on the right procedure. Division of Revenue Act is the chief law for the sharing of resources between the National government and the 47 County governments. The National Assembly and the Treasury had agreed on Sh210 billion, but the Senate added an extra Sh48 billion to ensure delivery of services in Counties was not affected once the national government stops providing for them. However when the Bill came back to the National Assembly, MPs did not consider the senators' input and retained the initial Sh210 billion, leading to their present conflict.
President Kenyatta's assent of the Division of Revenue Bill means that the 47 Counties will share Sh210 billion as approved by the National Assembly and not the Sh258 billion suggested by the Senate. The President justified his actions by explaining that it was important to facilitate timely conclusion of budgetary process in order to avert the risk of bringing Government business to a halt. Article 95(4a) of the Constitution states "The National Assembly determines the allocation of national revenue between the levels of government..." Article 96 (2 & 3) of the Constitution provide that the Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as well as determining the allocation of national revenue among counties including exercising oversight over national revenue allocated to the county governments. While the Senate insists that the President contravened Article 96, the National Assembly maintains that this is their preserve, as the Senate's role is to determine allocations among counties through the Counties Allocation Bill as outlined in Article 96(3) of the Constitution.
The Senators and Governors feel that the National Government is out to undermine them and consequently threaten to seek public approval to change the Constitution through a referendum. They seek to collect one million signatures so as to amend the Constitution to protect the Senate and devolution from Executive and National Assembly interference. The senators particularly want to amend Article 110 of the Constitution which spells out Bills concerning county governments. They also want amendments to Article 111 which gives the National Assembly powers to amend or prevent special bills originating from the Senate. The senators are also planning to remove the requirements stipulated in Article 113 of the Constitution which states; "...disputes arising from bills passed either by the Senate or the National Assembly should be referred to a mediation committee."
The Swahili proverb 'fahali wawili wakipigana nyasi huumia' translated to mean when two bulls are at war it is the grass that suffers, cannot fail to be invoked in the ongoing combat. The tussle is at the expense of citizens who are eagerly awaiting the benefits from devolution .The leaders who were voted in should put aside their selfish interest and work from a united front in order to steer our national interests to a greater level. It is also important for citizens to keep the leaders they appointed on their toes to perform their duties and not only fight for more money. The Constitutional definition of Leadership is about servant hood rather than possessing and wielding power. Therefore, any actions by Parliament should be in tandem with serving the people to ensure the objects of devolution are realized.
