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IEBC: We did not break any law in approving signatures

By Paul Ogemba | July 1st 2021
Former Attorney General Githu Muigai at the Appellate court for the hearing of the BBI appeal on June 30. [Denish Ochieng, Standard]

The electoral commission has accused five High Court judges of exceeding their mandate by stopping the country from going to a referendum.

In a four-point appeal, the Independent Electoral and Boundaries Commission (IEBC) defended its conduct in approving the Constitution of Kenya (Amendment) Bill, 2020, stating they followed due process as provided in the Constitution.

Through former Attorney General Githu Muigai and lawyers Eric Gumbo and Moses Kipgogey, the commission argued that the High Court judges jumped the gun by determining issues which were not properly before the court, issues they argue should have been left for Kenyans to decide.

“The judges only sat as a philosophical tribunal because their orders and declarations merely contained their opinions without any legal basis. The judges turned the court into a debating forum and their decision cannot be allowed to stand as it will be a recipe for chaos,” said Prof Muigai.

IEBC condensed their 12 grounds of appeal into four issues touching on their quorum, the commission’s role in a process to amend the constitution through a popular initiative, administrative framework to guide a referendum and whether the court had jurisdiction on the BBI case.

High Court judges Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka in their May 13 decision ruled IEBC lacked the quorum to conduct its businesses and faulted the commission from failing to verify the signatures in support of the BBI Bill.

The judges also declared that there were no legal and administrative framework to guide IEBC in conducting a referendum and issued a permanent order restraining the commission from proceedings to subject the BBI Constitution of Kenya Amendment Bill to referendum.

Prof Muigai however submitted before the Court of Appeal that the High Court premised its decision on the issue of IEBC quorum on non-existent law since the statute they relied on had been declared unconstitutional.

Former Attorney General Githu Muigai at the Appellate court for the hearing of the BBI appeal on June 30. [Denish Ochieng, Standard]

“It is worth noting that the same judge who declared the statute as unconstitutional was also sitting in the bench. A court cannot revive a statute which is non-existent to declare the IEBC lacked quorum in total disregard of the Constitution which sets minimum commissioners at three,” he said.

He added that the judges ignored a decision another High Court judge which had found that the IEBC is properly constituted with three commissioners, warning that it was a bad precedent that can create judicial anarchy where judges overturn decisions of their colleagues at the same level.

Prof Muigai argued that the judges rushed in stopping the BBI process when they lacked jurisdiction, and that they should have allowed the political process to conclude before deciding if any provision in BBI was unconstitutional.

“It is like the judges were saying Kenyans cannot be trusted with their own constitution. The court had opportunity to find that the grievances were not ripe for their intervention but they chose to tilt the judgment in a certain direction to suit their opinions,” said Muigai.

Former Attorney General Githu Muigai at the Appellate court for the hearing of the BBI appeal on June 30. [Denish Ochieng, Standard]

Lawyer Gumbo submitted that the judges misinterpreted the role of IEBC in a constitutional amendment process through a popular initiative since the commission’s obligation was only to ensure the BBI was supported by at least one million registered voters.

Gumbo argued that there is no law that obligates IEBC to verify signatures and that in any case, it would have been impossible to verify the over four million signatures that supported BBI.

“It cannot be possible for the IEBC to verify all the over four million signatures. For us to verify signatures then we must send it to DCI which takes one month to verify just one signature. It would then take many years to verify all the voters’ signatures,” said Gumbo.

He faulted the judges for finding that IEBC had not conducted new voter registration before commencing the BBI referendum process, stating that voter registration is a continuous process that is ongoing in the 290 constituencies.

On the finding that IEBC should have ensured there is public participation, Gumbo submitted that there is no law that obligates IEBC to compel promoters of a popular initiative to undertake public participation.

Lawyer Kipkogey argued that the judges got it wrong by ruling there was no legal framework to guide a referendum when the Elections Act gives the commission powers to conduct elections and any referendum.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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