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February 21, 2019

Poll laws changes remove grey areas

Voters cast their votes at Moi Avenue Primary School./PATRICK VIDIJA
Voters cast their votes at Moi Avenue Primary School./PATRICK VIDIJA

I was one of the Jubilee MPs who supported the Election Laws Amendment Bill last week.

As expected, NASA were quick to throw out all manner of accusations, including allegations Jubilee is using its tyranny of numbers to compromise the election laws to benefit President Uhuru Kenyatta unfairly on October 26. This is completely false but NASA has never allowed facts to stop them from spinning a good propaganda tale.

The amendments are about removing any grey areas in the Act. They deal with the issue of what is ultimately most important in an election — transmitting votes, or the votes each candidate gets — by making it imperative for the court to look at both the process of an election and its result (the number of votes cast), before determining its validity.

For example, after the August 8 General Election, NASA argued that IEBC chairman Wafula Chebukati announced the presidential results before receiving all the Forms 34A and 34B. We also heard that electronic transmission failed in some areas due to unavailability of 3G and 4G networks.

The amendments bind the IEBC chairman, as the national returning officer, to first receive all the Forms 34As and 34Bs, validate them, and reconcile them before announcing the presidential results. They also make the hardcopy Form 34A from the polling station the original source document, in case there is no electronic connectivity in a particular polling station.

Again, analysing the Supreme Court decision, it is clear that part of what led to the nullification of the presidential election was that some Forms 34A were not signed by presiding officers, and that some constituency returning officers did not sign Forms 34B.

The amendments make it a criminal offence with a jail term of up to five years for any presiding officer or returning officer to knowingly refuse to sign a required document, or to submit an incomplete document, or to willfully falsify an electoral document.

In addition, good corporate governance demands that there is a plan for continuity in case the current leadership is indisposed. Even our own Constitution plans for a situation where the President and Deputy President are indisposed, and proposes a way forward. This election amendment proposes a continuity process in case the IEBC chairman, or the Chief Justice of the Supreme Court, is indisposed.

Finally, Parliament has set two-thirds majority as the threshold on passage of laws with far-reaching consequences. These amendments set a similar threshold for such decisions by the Supreme Court or the IEBC.

About whether changes to election laws can be effected mid-stream to an election, we should all note there was no problem effecting the Maina Kiai decision making constituencies the final tallying centres, despite its passage a few weeks to the August 8 General Election. The same will certainly apply to any amendments to electoral laws.

But we must call out NASA. In the run-up to the August 8 election, NASA and its affiliates — including its coterie of NGOs — filed for electoral changes 47 times!

They went even further and used unconstitutional means to force the Issack Hassan-led IEBC commissioners out of office. All these actions caused very fundamental changes to how elections are conducted and they disrupted very critical timelines. But no one claimed this was unfairly benefitting Raila Odinga.

Today, when Jubilee makes electoral changes —according to the law and using its legal and constitutional mandate as a parliamentary group — to clarify and improve the electoral process, NASA and those same NGOs howl in protest and call for mass action and street demonstrations.

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