Parliament cannot de-legislate IEBC
COMMENTARY | By LEE MUTHOGA | July 6th 2016
NAIROBI: In the Thursday June 30, 2016 issue, The Standard published an editorial headed “Think hard over the IEBC”.
The article did not spell out the things a Parliamentary Select Committee and the respective Houses of Parliament, even the Kenyan people, can or cannot do in pursuit of electoral convenience.
It is important to set these matters out because politicians have been heard to say that the law and the Constitution are not permissive enough to enable them to do what they want to do.
The Independent Electoral and Boundaries Commission (IEBC) was set up by the Constitution of Kenya 2010. Unlike its predecessor, which was merely a statutory body, the IEBC is a constitutional entity established by Article 88 of the Constitution.
It cannot therefore be legislated out by Parliament even if it is unanimously supported by all the members of Parliament in both Houses.
It can only be de-legislated by an amendment to the constitution effected following the procedure set out in Chapter 16 of the Constitution.
Strict adherence to the procedures set out in Article 256 is essential to the validity of any legislation seeking to alter the composition and the manner of selection of the commissioners of the IEBC. It is important to point out that any attempt to buy out commissioners of the IEBC by paying them off handsomely and granting them immunity or amnesty for any errors or crimes they have committed as suggested by a leading politician would be an illegality amounting to a criminal offence called, “conspiracy to subvert the Constitution”, which is a felony.
Any person, commissioner, or any public servant authorising payment of public funds for this purpose would be liable to prosecution and any monies so paid would be recoverable, by surcharge from those who authorised payment and by civil action from those to whom payment is made.
If any commissioner has to be removed from office in accordance with Article 251 of the Constitution, it must be because he or she has been found, after due process, to be guilty of one or several of the violations set out in Article 251 (1)(a)(b) or (d).
To effect due process leading to a removal, it may take months to remove each commissioner. Commissioners may not be removed as a group, nor may a petition be entertained to remove all or any commissioners as a group. The National Assembly must consider petitions in respect of each commissioner separately and in strict adherence to Article 251 (2) of the Constitution.
If the National Assembly is satisfied that each of these petitions discloses a ground for removal set out above, then it shall send each of these petitions which disclose a ground for removal to the President, a likely contender of the next general election.
It provides that on receiving a petition, the President :-”(a) May suspend the member... pending the outcome of the complaint”.
Accordingly, if several petitions for the removal of several commissioners are forwarded to the President and if the President in the exercise of the power conferred by Article 251(4) (a) of the Constitution suspends the commissioners, the business of organising the forthcoming elections could come to a stop.
If the President were to decide not to suspend the commissioners in an attempt not to delay the preparation of the elections, it would mean the commissioners who are under investigation would be lumped up with defending themselves and carrying out their work as commissioners. This would be completely unadvisable. Accordingly, as the select committee of Parliament that has been set up gets down to the business of IEBC, let it be conscious of the fact that the task ahead of them may be one of persuading themselves to accept that the next general elections will be managed and conducted by the independent body set up to do so and that for these elections to be valid, they must comply with the structures of Article 81 of the Constitution, which sets out the principles for the electoral system.
Lastly, and most importantly, the committee must bear in mind that the date for the holding of the general election is no longer movable at the whim of anyone. Article 101(1) of the Constitution provides that a general election of members of Parliament shall be held on the second Tuesday in August every fifth year.
Taking all these matters into consideration, the committee should seek to do whatever can lawfully be done to ensure that the playing field is even and to eliminate any processes that may be abused to procure an unfair result in the next general election.
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