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Githu: Law vague on what ‘fresh polls’ means

By - | Published Fri, March 29th 2013 at 00:00, Updated March 28th 2013 at 23:23 GMT +3


Attorney General GithuMuigai makes submission during the hearing of the petition challenging the election of Uhuru Kenyatta as Kenya’s fourth president.  [PHOTO: EVANS HABIL/STANDARD]

By Ally Jamah

NAIROBI; KENYA: Attorney General Githu Muigai has told the Supreme Court that should the results for the March 4 presidential elections be invalid, the Constitution is not clear on what “fresh elections” would entail.

Githu noted that it was also not clear whether under the same circumstances it would only be a contest between President-elect Uhuru Kenyatta and Prime Minister Raila Odinga only.

Speaking yesterday during his “friend of the court brief”, the AG said the Constitution provides contradictory definitions of fresh elections.

“The potential difficulty which the court must grapple with arises out of the ambiguity surrounding the use of the words “fresh elections”.

This Constitution, despite our best intentions, contains serious inconsistencies and sometimes outright contradictions. The Constitution uses the term “fresh elections” twice to mean different things. In Article 138 (5), it has one meaning, while in Article 140, it seems to have another meaning,” he told the judges in his 23 page Amicus Curiae brief.

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He told the judges: “You will need to determine whether a fresh election is an entirely new presidential election that goes back to the primaries, or an election with a limited number of candidates. Your judgment may have unintended consequences,” he said.

Substantial defects

The AG also said that should the court declare the voters register as having substantial defects as the petition is asking them to, it may mean that the legality of the elections for senators, governors and other elective posts may be questioned since they were elected using the same registers.

“I would hate to see my distinguished friend the honourable Amos Wako vacate his office of senatorship of Busia County. One decision can have another unintended ramification,” he said.

The AG also requested the court to determine whether there was substantial non-compliance with the Constitution and relevant election laws in conducting the March 4 polls, and whether that substantially affected the final results.

“In Nigeria, whose election laws most approximate those in Kenya, an election shall not be invalidated by reason of non-compliance with the provisions of the election laws if it appears that the elections were conducted substantially in compliance with the principles and provisions of the Acts. The Kenya law echoes the same,” he said.

He said the petitioners have the burden to prove that IEBC did not substantially comply with the Constitution and relevant laws in conducting the polls while the respondents have the burden to prove that non-compliance affect the final outcome.

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