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March 21, 2018

Jubilee MPs to amend law over Uhuru poll petition


Brace for another showdown between Jubilee and NASA as JP prepares to introduce radical electoral amendments to curtail judicial powers and "cage" the Supreme Court.

One would make it virtually impossible for the apex court to nullify a presidential poll. They are expected to be introduced on Tuesday next week and swiftly enacted by the JP majority.

This ahead of a presidential rerun on October 26.

The Supreme Court said on Wednesday it would not hesitate to overturn the outcome of the rerun if it similarly violated the Constitution and other laws, like the August 8 poll.

But on Thursday, Senate Majority Leader Kipchumba Murkomen said when the amendments are passed, "The Supreme Court will be caged."

Details of MPs counterattack emerged on Friday as NASA trashed Attorney General Githu Muigai's declaration Kenyatta remains in charge, even if a new poll is not held within 60 days provided by law.

Among the controversial and far-reaching amendments Jubilee has lined up is a proposal making it almost impossible to void a disputed presidential election.

The MPs picked up on Uhuru's truculent tone on September 2, the day after his victory was nullified, 4-2, over "enormous irregularities and illegalities" and violation of the Constitution.

At a rally at Nairobi's Burma Market, Uhuru said the Executive arm of government would revisit the issue of broad Supreme Court powers.

DP William Ruto also attacked the four Supreme Court judges, saying the majority's decision focused on technicalities instead of numbers. He said judges went for "quality rather than quantity", adding there was no perfect election anywhere in the world.

Jubilee wants to make it mandatory for a petitioner to prove to the Supreme Court that violations of the Constitution or any electoral law significantly alter the presidential outcome, as declared by the IEBC.

This is among proposals made by Justice Njoki Ndungu in her 440-page dissenting opinion in which she attacked the majority opinion, saying it wrongly lowered the standard for nullification of presidential polls.

The majority ruling was 178 pages. Justice Prof Jackton Ojwang wrote 91 pages in dissent.

On Friday,Opposition chief Raila Odinga, who challenged Kenyatta's win, said one of the two dissenting judges was at State House over the weekend to celebrate ahead of the reading of the ruling.

“We challenge Uhuru Kenyatta to deny one of the dissenting judges spent all Saturday at State House at his invitation in celebration of the dissenting ruling ahead of its delivery,” Raila told a press conference.

He said Uhuru's contribution to the struggle for Constitutionalism was zero.

In her ruling, Judge Njoki said the interpretation of Section 83 of the Elections Act by the majority will unleash “jurisprudential confusion never before witnessed”.

“Parliament must therefore untie the hands of Courts below by clarifying the meaning of Section 83 of the Elections Act. That is the only way that we can avert a crisis of jurisprudence in such a sensitive area of law, as elections,” Njoki wrote.

Murkomen told Citizen TV on Thursday, "Once we do that [pass amendments], the Supreme Court has no choice. They cannot go pluck imaginations of their own. They would have to follow the law."

In their interpretation of the contentious Section 82 of the Elections Act, the majority said an election will be nullified if a petitioner is able to prove the conduct of the election in question substantially violated the principles laid down in the Constitution and other written law.

They also said an election would be nullified if it was fraught with irregularities or illegalities that affected the result.

The justices, including CJ Maraga, DCJ Philomena Mwilu and justices Smokin Wanjala and Isaac Lenaola concluded that elections are not events but processes.

“Elections are not only about numbers as many, surprisingly even prominent lawyers, would like the country to believe,” DCJ Mwilu said on Wednesday in reading the detailed ruling.

“Even in numbers, we used to be told in school that to arrive at a mathematical solution, there is always a computational path one has to take, as proof that the process indeed gives rise to the stated solution.”

Jubilee also seek to introduce what they term a complimentary mechanism to electronic transmission of results.

It is not clear whether JP wants manual transmission as the complementary mechanism.

According to the Supreme Court, the law currently provides for electronic transmission of results only.

On Thursday, Uhuru said the judgment has created “uncertainties and raised matters that require legislative attention”.

“We must and expeditiously correct the anomalies that are now going to be created by this decision and make surepeople can go to the elections with a clear path straightened by the legislature,” Murkomen said.

But NASA Chief Executive Officer Norman Magaya told the Star there will be no elections if Jubilee amends the law. NASA has been saying it has "irreducible minimums," without which there will be no election on October 26 or thereafter.not be an election on October 26 or thereafter.

“In our understanding, what these guys want to do is try and open loopholes for rigging elections through these amendments — and that entry was provided in the judgment of Njoki Ndungu,” Magaya told the Star.

“If there is any attempt to amend the election law, I can assure you of our earlier stated position — there would be no elections...This is not an idle threat,” he said.

But amid the no-election tough talk by NASA, the AG warned on Friday that Uhuru will remain in charge, even if there are no elections.

“If in any case the elections are not held within 60 days, that does not de-legitimise the government of the day,” Githu said, contradicting many legal minds, including LSK Chairman Isaac Okero.

Githu was rebuked by Ford Kenya Leader Moses Wetang'ula of being mischievous and dishonest.

“What the Constitution then provides for, and you can read it very carefully, is a provision that then makes the Speaker of the National Assembly a caretaker President for 90 days to have elections,” Wetang'ula told a press conference on Friday.

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