Sunday, September 2, 2012

Why election dispute before run-off poses legal dilemma


By Mwaniki Munuhe
The country could easily run into a constitutional crisis in case of a dispute arising from the first round of presidential election next year.
It has emerged that neither the Constitution nor the Elections Act provide express provisions on the procedures in resolving such a dispute.
Instead, the Constitution anticipates a dispute only in the in case of a run-off, a move that can place the country in a legal lacuna.
Article 140 of the Constitution reads: “A person may file a petition in the Supreme Court to challenge the election of the president-elect within seven days after the date of the declaration of the results of the presidential election. (2) Within 14 days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final. (3) If the Supreme Court determines the election of the president-elect to be invalid, a fresh election shall be held within 60 days after the determination.”
Legal lacuna
Speaking to The Standard On Sunday on the telephone, Parliamentary Committee on Delegated Legislation chairperson Amina Abdalla admitted the matter appears to have been overlooked by drafters of the Constitution and neither has it been addressed in the subsequent legislations.
“I am happy you have noted that. It is true the Constitution does not envision that aspect and it is a very serious issue. Unfortunately, this anomaly was not taken care of in the Elections Act and it has not been included in the elections rules.  The question to ask is, is a dispute arising from the first round of presidential elections a matter to be resolved by the Independent Electoral and Boundaries Commission, would it be a petition and within what period should it determined?” she said.
Of equal concern is the 30-day period within which a run-off is expected to take off in case no presidential candidate meets the stipulated threshold in the first round.
“The Constitution is clear that the run-off should take place 30 days after the results of the first round of elections are announced and there is no winner. But assuming there is a dispute in the first round, when would the 30 days start to run? Would it be immediately after the result of the first round is announced? Is it after the determination of the dispute? These are matters that we need to reflect on,” she added
Parliament has in the recent past rushed through the House some Bills that contain erroneous or vague provisions in a bid to meet constitutional deadlines.
Proper scrutiny
MPs have accused the Executive of delaying presentation of such Bills to parliament, effectively denying the House sufficient time to undertake proper scrutiny.
“Most times, these Bills do not represent the ideal. They represent what Parliament would enact without creating a crisis especially where constitutional timelines exist,” Attorney General Githu Muigai told The Standard On Sunday in a recent interview.
By close of business on Thursday, MPs were accusing the Government and IEBC of delays in presenting to the House election rules amid revelations the rules are not watertight and that critical stakeholders were not consulted.
Free, fair polls
“The rules have left out various aspects that are critical towards ensuring a free and fair election. Really, free and fair election is what we all want. Involving all stakeholders was essential. How shall we know which results will be announced before the other, is there order, who will announce?” posed Njoroge Baiya, deputy chairperson of the Legal Affairs committee of Parliament.
On Saturday, joint committees of Delegated Legislation, Legal Affairs and COIC met to discuss the regulations.
“There are many other issues to deal with other than the nomination fees. The fees are just a small aspect of what is to be addressed. IEBC is reluctant to make hard decision and MPs must come in and make hard decisions on behalf of the country. We are going into a meeting to look at the rules,” said Amina.
Some of the aspects the rules as tabled have left out include whether the voters in Diaspora will only be allowed to participate in the presidential elections or they will still vote at other levels and the rationale thereof, whether or not a pre-coalition will have a symbol among others.
“Our biggest apprehension is that IEBC does not seem ready for the elections. We kept asking for these regulations for a very long time only to see a set of wanting regulations and it’s a bit too late in the day. Honestly speaking, there seems to be some inertia in the commission. We are about six months to the election; the Government has not even identified the people to supply the Biometric voter registration equipment. It will need to be tested; voter registration will require time and also note that the commission did not even include guidance as to the use of the biometric system in the regulations. There is a serious problem in that commission,” said a member of the Legal Affairs committee, who did not want to be quoted.



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