By Ally Jamah And Peter Opiyo
The Commission for the Implementation of the Constitution (CIC) has opposed proposals by MPs to change key provisions of the Elections Act including one on by-elections.
Currently, no by-elections can be held unless the Act is amended to enable the Speaker issue writs for the vacant seats. No law expressly outlines how the by-elections can be carried out until the Statute Law (Miscellaneous Amendments) Bill, 2012 is enacted.
Other controversial proposals are allowing candidates to run for several posts and with low academic qualifications. The Bill is set for debate in Parliament today.
CIC chairman Charles Nyachae termed the three proposed amendments to the Elections Act as “unconstitutional” and said if passed, the commission will write to President Kibaki asking him not to assent the Bill into law. He warned that should that fail, they would go to court to overturn the amendments.
“If passed the amendments would be a contravention of the Constitution,” Nyachae said yesterday at CIC offices in Nairobi.
Nyachae said plans to amend Section 22 of the Elections Act to lower academic standards of electoral candidates are unacceptable.
The section reads: “A person may be nominated as a candidate for an election under this act only if that person holds a post-secondary school qualification recognized in Kenya.
The proposed amendments seek to lower the qualification to a certificate after secondary education. In addition, it proposes that requirement shall not apply to a person who on the commencement has served or is serving as an MP or a councilor and that it shall only apply to the first General Elections held under the Act.
Rights of voters
“This means they will be lowering qualifications for the current but not future elections. The effect would be that those who have served or serving as MPs or councilors would be subjected to different standards from other Kenyans who may wish to vie for elective seats. This is clearly discriminatory and violates principles and values of the Constitution”.
He added that article 116 of the Constitution says that the Parliament shall not confer advantages to itself and any law that grants such an advantage should only come at a later date.
On by-elections, constituents of Kangema, Ndhiwa and Kajiado North who lost their MPs may have to wait longer to elect other representatives.
The Elections Act suspended the provision that give the National Assembly Speaker the power to issue writs declaring a seat vacant until after the first General Elections in the new Constitution.
It is because of this lacuna that Attorney General Prof Githu Muigai has put up amendments to the Elections Act, 2011, to facilitate by-elections.
“The Elections Act is ambiguous. So we have to solve concerns raised by the Independent Electoral and Boundaries Commission to have some clarity in the Act,” said Muigai.
In the new Constitution, the Speaker has 21 days from the date the vacancy occurred to declare the seat vacant paving way for a by-election, which shall be held within 90 days of the occurrence of the vacancy.
Clerk of the National Assembly, Patrick Gichohi, agreed that Parliament’s hands are tied and the Speaker cannot declare any seat vacant until the law is amended.
“Amendments that will facilitate conducting of by-elections is being addressed by the Statute Law (Miscellaneous Amendments) Bill, 2012. So it is an urgent matter that needs to be addressed,” said Gichohi.
Chairman of the Constitutional Implementation Oversight Committee Abdikadir Mohamed conceded a lacuna exists. He said the law that guided the elections and by-elections were repealed by the Elections Act, 2011, which unfortunately omitted the provision of who to issue writs before the General Election.
“The Statute Law (Miscellaneous Amendments) Bill seeks to amend the Elections Act so that the Speaker still retains the power to issue writs,” said Abdikadir.
Vacant seats
But lawyers Willis Otieno and David Ojwang’ argue the Speaker can still exploit the Interpretation and General Provisions Act to declare the seat vacant, as it requires any legal action should not be delayed as to infringe on the rights of others.
“The Speaker has to declare the seats vacant within reasonable time and for the people of Kangema to wait for four months is not reasonable time,” said Mr Otieno, a programmes officer at Electoral Institute for Sustainable Democracy in Africa.
Mr Ojwang said the Speaker needs to consider the rights Kangema people to be represented saying denying them the opportunity contravenes the Constitution.
“The Speaker is acting in contravention of Section 1(1) and 1(2) as read together with section 94 (1) of the Constitution effectively ousting the exercise of sovereign power by the constituents concerned,” argued Mr Ojwang’.
Chairman of Parliamentary Committee on Justice and Legal Affairs, Njoroge Baiya admits it is a tricky affair given that Article 101 of the Constitution is suspended and the National Assembly and Presidential Elections Act that guided the process have also been repealed by the Elections Act.
“For the case of Kangema it is unreasonable for not declaring the seat vacant four months after the seat fell vacant,” said Baiya, the Githunguri MP.
Nyachae also opposed amendments proposed by Garsen MP Danson Mungatana on Section 34 of the Elections Act which reads thus: “The nomination party lists to be submitted to IEBC before the elections may not contain the name of any presidential or deputy presidential candidate nominated under the Act.”
The original bill worked on by CIC had used the stronger term “shall not” but was watered down by MPs to “may not”.
Nyachae said the party lists were meant to be affirmative action for the disabled, women, youth and marginalised communities in the national and county assemblies as well as senate. “The proposal gravely undermines the principles of affirmative action which the Constitution aims to promote,” said Nyachae.
