The High Court has faulted Parliament for amending election laws in 2016 without following standing orders and the Constitution.
In a decision that put a dent in how the 2017 elections were conducted, High Court judge George Odunga yesterday said two joint parliamentary meetings called by the speakers of the Senate and National Assembly to discuss changes to the election law were illegal.
Although the judge declined to quash the amendments as they were applied in the last year’s election, he ruled that the manner in which the proceedings on the election laws were conducted was unprocedural and against the Constitution.
On December 20, 2016, the floor of the National Assembly turned chaotic as both Jubilee and the then Coalition for Reforms and Democracy (CORD) battled over proposals to make changes to the election law. Speaker Justin Muturi adjourned the sitting but gazetted another one two days later.
During the second sitting held on December 22, Opposition MPs walked out of the proceedings and marched through the streets, leaving Jubilee MPs to pass the amendments that included adoption of a manual identification of voters, tallying and transmission of results in the 2017 election.
The lawmakers also shelved implementation of the Elections Campaign Financing Act, which was to cap how much candidates for various seats used during campaigns, as well as the law dealing with qualifications of Members of the County Assembly and Members of Parliament.
In the second sitting, anti-riot police officers barricaded Parliament in anticipation of chaos that had marred the previous sitting.
The officers were stationed at the intersections of Uhuru Highway and Parliament Road, and City Hall Way, Parliament Road and Harambee Avenue, forcing MPs to walk through the cordon.
Live broadcasts from the Parliamentary Broadcasting Unit were also cut off, and journalists were ordered to steer clear of the gallery.
In court, Mr Muturi argued that he adjourned the first sitting as some of the legislators had sneaked in pepper spray and whistles.
But Justice Odunga noted that his claims were not penned in the House minutes.
Muturi told the court that the presence of the law enforcement officers in the second sitting was to ensure that MPs were safe.
But the judge faulted him, saying they were unnecessarily deployed as there was no real threat reported to any State agency.
Odunga also found that there was no explanation by the speakers on why they called for a special sitting twice.
He observed that both houses had discussed the same issues before going on recess.
“In what was an aberration of our history and Parliament business and operations of both houses, the precincts of Parliament were barricaded by the police and paramilitary security forces. It tainted the image of Parliament as a people’s democratic institution with elected representatives of the people enjoying the power and privileges of Parliament,” he ruled.
The judge was also told that the amendment laws were passed as a matter of public interest.
The Attorney General, sued alongside the two speakers, argued that the amendments were to help Kenyans vote with ease. He also told the judge that courts could not interfere with Parliament’s law-making process.
However, Odunga found that key steps in the law-making process were overlooked by the legislators.
He noted that the amendments were introduced on the floor of the house by Leader of Majority Aden Duale and then chair of the Justice and Legal Affairs Committee, Samuel Chepkonga. The bills were however still at the committee stage.
The judge ruled that the bills ought to have first been subjected to public participation.