Kenya’s democ­racy, law comes un­der at­tack

Supremacy bat­tles could de­stroy the prin­ci­ple of sep­a­ra­tion of pow­ers

The East African - - NEWS - By FRED OLUOCH Spe­cial Cor­re­spon­dent

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 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.

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.

Pic­ture: File

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

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