No need for rad­i­cal surgery to Sec­tion 87 of the Elec­tion Act

Nairobi Law Monthly - - Briefing - SUN­DAY MEMBA

If the Au­gust House passes the Elec­tion Laws (Amend­ment) (No.3) Bill of 2015, (which is ex­pected) it shall have done a dis­hon­ourable thing. It is an open se­cret that par­lia­ment is not made up of the best brains. Be that as it may, if Clause 23 of the Bill forms part of our law, it shall demon­strate that no mod­icum of com­mon sense was even con­sid­ered. But it is of no sur­prise as the Bill is in­tro­duced by one of them.

Par­lia­ment en­acted the Elec­tion Law Act no 24 of 2011 by virtue of Ar­ti­cle 87(1) of the Con­sti­tu­tion of Kenya. Not con­sid­er­ing the fact that the act has al­ready been amended twice, they deemed it fit to amend Sec­tion 87(1) of the Elec­tion Act (law is not cast in stone any­way). This sec­tion was re­spon­si­ble for Senator Moses We­tan­gula’s se­ries of prob­lems this year. The senator suc­cess­fully shoe­horned his way out of the de­ba­cle which still raised eye­brows on how in­tel­lec­tu­als in­ter­pret very sim­ple con­structed statutes in Kenya.

This sec­tion clearly pro­vides that if one is found to have com­mit­ted an elec­toral of­fence by an elec­tion court, his name would be for­warded to the Di­rec­tor of Pub­lic Pros­e­cu­tions and the con­cerned speaker of par­lia­ment. More im­por­tantly is the High Court would have proved that the in­di­vid­ual is guilty of an elec­toral of­fence. The speaker shall then pub­lish a re­port and hand it over to the IEBC. The IEBC shall then con­sider the re­port and delete the in­di­vid­ual’s name from the vot­ers’ reg­is­ter. The DPP may opt to pur­sue crim­i­nal sanc­tions for the per­son found guilty of the of­fence. It is of my view that this law raises no is­sue to be con­sid­ered for amend­ment.

The new amend­ment, which is very ridicu­lous, gives of­fend­ers the choice of re­peat­ing the elec­tion of­fences as long as they want. Their names can no longer be deleted. They en­joy elec­tion im­mu­nity. It pro­vides that an elec­tion court sends a re­port to the DPP if it con­sid­ers that one com­mit­ted an elec­toral of­fence. The DPP may shall then send the re­port to the In­spec­tor-gen­eral who in­ves­ti­gates the of­fence (con­sid­er­ing it may be the same of­fence the High Court found one guilty of ). The DPP may then con­sider to com­mence pros­e­cu­tion or com­mence the file.

Le­gal ques­tions arise when such an amend­ment is even sug­gested. The first is, if the court con­sid­ers one to have com­mit­ted an elec­toral of­fence, can the DPP, if he finds his case to be weak, con­sider clos­ing the file? Con­sid­er­ing courts glob­ally in com­mon law coun­tries de­ter­mine of­fences on the beam bal­ance of be­yond rea­son­able doubt, would it be nec­es­sary for the DPP to even com­mence pro­ceed­ings of a case whose re­sults were known be­fore the case be­gan? And if, for in­stance, the mat­ter ap­pears be­fore the same court, can a dif­fer­ent judg­ment be reached upon? This ques­tions de­mand that this amend­ment be thrown to the dogs or be told to the birds.

We can­not gain­say the rel­e­vance of Sec­tion 87 of the Elec­tion Act. It was a re­flec­tion of Je­sus’ para­ble, new wine in new wine­skins. Its ul­ti­mate im­por­tance was to cure a mis­chief which hi­ber­nates and resur­faces dur­ing the elec­tion pe­riod. Many politi­cians com­mit elec­tion of­fences and thus a rem­edy would be to pre­vent them from vy­ing to en­sure the country gets morally-ac­cept­able lead­er­ship.

Fi­nally, our con­sti­tu­tion is a trans­for­ma­tive one, and it would be im­por­tant if we all em­braced trans­for­ma­tion. To live up to this ideal, we need to be trans­for­ma­tive and ac­cept good change. In this spirit, Clause 23 of the Bill should never see the light of day.

Ka­bete MP Fer­di­nand Waititu ar­gues with Mom­basa gov­er­nor at the Malindi by-elec­tion.

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