Can the President change his running mate in the upcoming presidential elections? Perhaps by proposing through his party an amendment of the nomination laws? Can Parliament change the elections laws to allow more than the two presidential candidates on October 26?
By the time IEBC declared the presidential winner on August 10 it had not received over 10,000 electronic copies of Forms 34A. This, coupled with the refusal to open up its servers for scrutiny, was pointed out by the Supreme Court to be among its biggest failures.
The electronic transmission of presidential results is the main target of the proposed changes to the laws governing elections. The drafters of these proposed changes have overlooked three fundamental principles of the Constitution.
First, the Presidential Elections on October 26 are fresh elections. They are not a General Election. The race may be fresh, but not the championship. Since Parliament can’t change the law to allow more than two presidential candidates, similarly they cannot change the laws that were governing the presidential elections on August 8 because laws are not meant to have retrospective effect except in exceptional cases.
The principle that laws should not have retrospective effect simply means that laws should not govern past conduct and actions particularly if they will result in the taking away of established rights. The right of the opposition presidential candidate and his coalition to an elections system that reduces the risk of manipulation of elections should not and will not so easily be taken away. Particularly, when the target of the proposed changes is a fresh election conducted after the nullification of the results of the General Election.
The first reason is so closely tied to the second that they are inseparable. It is this: The right to a fair and free election is a fundamental right of each citizen of Kenya. It is the right of every Kenyan, registered to vote or not, young or old, resident or abroad, to have a president elected in a free and fair election. This right is protected under Article 38 of the Constitution. The existing legal requirements that presidential results should be electronically transmitted before a presiding officer leaves a polling station is now part of the rights of all Kenyan citizens to a free and fair election.
The Court of Appeal, in the Maina Kiai case, stated that the simultaneous electronic transmission of presidential results from polling stations to the Constituency and National Tallying Centres, before they are physically ferried, is an important safeguard against presiding officers who change their manual forms.
The Jubilee Party, which is sponsoring the President on October 26, may have a majority of the representatives in both Houses of Parliament. However, by no means has this made their legislative power limitless. An Article 38 right to a free and fair election is protected in two ways. Firstly, it falls under Chapter 4 of the Constitution, the Bill of Rights that can only be changed through a popular referendum. Secondly, Article 24 of the Constitution provides that any law that limits a fundamental right must be reasonable and justifiable, otherwise it is unconstitutional. The proposed removal of the electronic safeguards against the physical manipulation of presidential results after the fact is not reasonable and it is not justifiable.
Finally, Articles 81 and 82 of the Constitution require every election, among other qualities, to be transparent. A presidential result from a polling station whose electronic copy and manual copy are different does not meet the test of transparency. A law that justifies such an absurdity, by providing that the manual copy will be prevail over the electronic copy, does not and will not pass muster.
- The writer is an Advocate of the High Court of Kenya.