Kenya’s democracy, law comes under attack

A protest against Kenya’s electoral commission officials accused of bungling the August 8 presidential election in Kisumu, on September 23. PHOTO FILE | NATION 

In Summary

• Despite the Kenyan Constitution being hailed as one of the most liberal and democratic documents in Africa, the nullification of President Uhuru Kenyatta’s election on September 1 has exposed the law and the country’s democracy to political attacks.
• The ruling Jubilee is currently working out ways to reduce the Judiciary’s powers using their majority in the National Assembly and the Senate, and are also lobbying for the removal of two Supreme Court judges.
• On the other hand, the opposition coalition under the National Super Alliance (Nasa) is busy pushing for the sacking of 12 members of the IEBC before fresh presidential election on October 26, on account that they took part in bungling the August 8 polls.

By FRED OLUOCH
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The recent nullification of the Kenyan presidential election has put the country’s democracy to the test, seven years since the promulgation of the 2010 Constitution.

Despite the Constitution being hailed as one of the most liberal and democratic documents in Africa, the nullification of President Uhuru Kenyatta’s election on September 1 has exposed the law and the country’s democracy to political attacks.

Independent institutions such as the Judiciary and the electoral body Independent Electoral and Boundaries Commission (IEBC) are under siege as various political players try to influence the way they operate.

The three arms of government — the Executive, Judiciary and the Legislature — are jostling for supremacy which could destroy the principle of separation of powers.

The ruling Jubilee is currently working out ways to reduce the Judiciary’s powers using their majority in the National Assembly and the Senate, and are also lobbying for the removal of two Supreme Court judges.

President Kenyatta has consistently attacked Chief Justice David Maraga, bringing the Judiciary into disrepute. Jubilee has also sponsored The Election Laws (Amendment) Bill 2017, which seeks to reduce the powers and independence of IEBC.

“Jubilee Party candidate Uhuru Kenyatta is engaging in unjustly, unfounded and dangerous politics of delegitimising Courts,” said the executive director International Centre for Policy and Conflict, Ndung’u Wainaina.

On the other hand, the opposition coalition under the National Super Alliance (Nasa) is busy pushing for the sacking of 12 members of the IEBC before fresh presidential election on October 26, on account that they took part in bungling the August 8 polls.

Lacking legitimacy

But the repeat election risks lacking legitimacy as the government pushes the new electoral laws that would drastically change the playing field.

It proposes changes that conflict with the Supreme Court ruling.

“The dilemma is that do we follow what the Supreme Court said or the new amendments? I hope that there is still time for consultations and the stakeholders must find a middle ground for the sake of the credibility of the elections,” said Michael Chege, an economic lecturer at Strathmore University in Nairobi.

Deputy President William Ruto said that the amendment to the election laws is meant to comply with the court order.

President Kenyatta said the changes to the electoral law will guarantee transparency by curbing malpractices.

“There is no way the government will allow any person to block any voter from exercising their right to choose the leader or leaders of their choice,” the President said.

But Nasa insists that Jubilee is trying to unilaterally design the rules of the game in which they are players.

Key features of the proposed amendments that went through the first reading on September 29 include: “Where there is discrepancy between the electronically transmitted and manually transmitted results, the manually transmitted results shall prevail”.

The Supreme Court while nullifying the results had noted that the scanned copy of the primary Form 34 (A) were not electronically transmitted with the text results according to the law.

But the proposed amendments now say that “Any failure to transmit or publish the election results in an electronic format shall not invalidate the result as announced at the polling station and constituency tallying centre, respectively.” 

According to constitutional lawyer, Gitobu Imanyara, the Supreme Court was specific that the repeat elections should be held in accordance with the existing laws and the amendments should not go beyond the court ruling.

“The repeat elections should comply with the court order which cannot be subjected to intervention by parliament in the middle of the game,” said Mr Imanyara.