Case by Kivuitu's team kicks off

BY JUDY OGUTU

A case by 21 former Electoral Commission of Kenya (ECK) commissioners has kicked off before a Constitutional Court in Nairobi.The former electoral officials are challenging the government's decision to disband the electoral body and remove them from office.

Through their advocate, Mr Kibe Mungai, the applicants Monday recalled how in October 2008, they learnt the Government, pursuant to recommendations made by Kriegler Commission intended to disband the ECK.

It was seeking to do so by way of a constitutional amendment, a move they challenged and obtained an interim injunction restraining the Government, through the Attorney General (AG), from disbanding ECK and removing them from office.

In the suit filed in court, they want Judges Kalpana Rawal, David Maraga and George Dulu to determine whether the executive jointly with the legislator had powers to remove them from office through a constitutional amendment.

According to them, they can only be removed following the recommendations of a judicial tribunal. The tribunal, Mungai argued, should have made adverse findings.

Section 41 of the Constitution (old), they argue grants them security of tenure, which ensures constitutional office holders perform their functions independently.

" Tenure can only be taken away in accordance with the constitution," Mungai submitted before the three judges.

The commissioners say that neither Government nor parliament has powers under Section 47 of the constitution to amend Section 41 of the Constitution to allow it disband ECK.

For ECK to be disbanded and its commissioners removed from office, they argued, there is a proper procedure to be followed, which is provided for in Section 41 of the Constitution.

Section 41 of the constitution says that if any question of inability is raised in relation to a commissioner or misconduct is alleged then the matter is to be referred to a tribunal.

And it also says that for an ECK commissioner to be removed from office then the tribunal has to give recommendations after hearing the allegations against the particular commissioner.