While the electoral commission is haggling with politicians over preparations for the August 9 General Election, the Judiciary has taken centre stage in shaping the process.
Based on recent decisions that go to the heart and soul of the forthcoming polls, the Judiciary has become the big brother watching the conduct of the Independent Electoral and Boundaries Commission (IEBC) and is always ready to hit at every baton to ensure the electoral process is free and fair.
From deciding on who will be on the ballot, what method should be used in voting, printing of ballot papers to integrity of candidates; the judges have decided not to be fence-sitters and have taken every opportunity whenever presented with a petition to direct the commission on what to do.
Chief Justice Martha Koome, in a meeting with the Kenya Editors Guild on Saturday, did not mince her words when she told IEBC to put its house in order and avoid the irregularities that led to the nullification of President Uhuru Kenyatta’s win in 2017.
“IEBC has a responsibility to show the country that it has dealt with the concerns raised by the courts and the public before presiding over the next polls in August based on the Supreme Court findings in 2017 that it failed to conduct the presidential election in accordance with the Constitution,” she said.
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Justice Koome asked the commission to prove it has addressed electoral integrity issues raised by the apex court in 2017, adding that the elections must conform to the Constitution and electoral law by ensuring all requisite processes are simple, accurate, verifiable, accountable and transparent.
Several High Court judges have taken cue of the CJ’s concerns and issued orders directing IEBC on what to do before the August 9 polls.
The recent haze by the Judiciary to have a hand in preparations for the elections stems from the 2017 Supreme Court decision, which declared that the processes in elections are as important as the outcome and that unless the processes are in order, the outcome can be questionable.
When it comes to having pictures of candidates on the ballot papers, IEBC has only been publishing the photos of presidential candidates and governorship aspirants as happened in the two-post 2010 Constitution elections in 2013 and 2017.
But the tradition is set to change, courtesy of Justice Anthony Mrima who on June 29 ordered the commission to include pictures of presidential and governors’ running mates on the ballot papers for the forthcoming polls.
“Since the printing of ballot papers is yet to begin, the commission has to comply with the order that they include the photographs of persons nominated as deputy presidents and deputy governors in the ballot paper to be used in the General Election to be held on August 9, 2022,” ruled Justice Mrima.
The petition was filed by lawyer Mugambi Imanyara who argued that exclusion of running-mates’ images from the ballot papers violates Article 27 of the Constitution on equality and freedom from discrimination.
According to the lawyer, the photos of all candidates who vie for elective positions on joint tickets play a major role in persuading voters into voting leaders of their choice and that there was no justification why only the presidential and governor candidates should have their images.
For the elusive two-thirds gender principle, which requires equal representation in elective positions, the electoral commission came up with a formula to ensure it is achieved during the August 9 polls.
To achieve this, IEBC on April 27 wrote to political parties to ensure their nomination lists comply with the two-thirds gender principle and warned that they would reject any list of nominated candidates if it failed the gender equality test.
However, Justice Mrima quashed the requirement by declaring that it is unconstitutional since it will deny the electorate a chance to elect a candidate of their choice if only candidates of a particular gender are allowed to contest in a given electoral area.
Mrima ruled that although IEBC had good intentions in demanding that political parties comply with gender principle to ensure equal representation in Parliament, they should have sought public views before demanding that the political parties comply with it in their nominations.
“The decision had a direct effect on a larger section of the public, political parties, their members and nominated candidates for National Assembly and the Senate. As such, the commission should have subjected it to public participation before issuing the directive,” he ruled.
According to the judge, the decision was not only an internal mechanism by IEBC to ensure gender balance but one which affected a large group of voters whose rights to elect a candidate of their choice during party nominations would be affected.
Although the Constitution and the electoral laws give IEBC the mandate to clear candidates for various elective seats, the courts have not shied away from taking up the role of determining who should be on the ballot or those to be locked out.
It is the reason why the candidature of some governor candidates hangs in the balance after petitions were filed at the High Court challenging their academic qualifications.
In Machakos, the fate of Wavinya Ndeti lies in the hands of Justice George Odunga after two voters moved to court challenging her degree qualifications after the IEBC cleared her.
It's the same fate that awaits Kakamega governor candidate Cleophas Malala and Nairobi’s Johnson Sakaja whose degree certificates are being challenged in court.
Billionaire businessman Jimi Wanjigi’s bid to be included in the ballot as a presidential candidate through Safina Party was brought to an end by High Court Judge Jairus Ngaah who ruled that only the IEBC can determine his academic qualifications to contest the top seat.
By making that determination, the High Court has made it clear that only four presidential candidates, former Prime Minister Raila Odinga, Deputy President William Ruto, Roots Party leader George Wajackoyah and Agano Party candidate Mwaure Waihiga will be on the ballot.
When it comes to integrity of candidates seeking political seats, three High Court judges David Majanja, Chacha Mwita and Mugure Thande sealed the fate of former Nairobi Governor Mike Sonko and former Kiambu Executive Paul Karungo Thang’wa.
Sonko was seeking to be Mombasa governor on a Wiper ticket while Thang’wa was seeking the Kiambu Senate seat on a UDA ticket. Both had been impeached as Nairobi governor and Kiambu executive, respectively.
The judges ruled that on account of their impeachment, the IEBC was right in locking them out for breaching Chapter Six of the Constitution on leadership and integrity.
“We find that pre-election disputes such as those regarding suitability and eligibility for nomination of candidates must be resolved by the IEBC in the first instance. The High Court’s jurisdiction is only triggered once the IEBC makes a decision on the issue,” ruled the judges.
As IEBC continues finding itself in murky waters on whether to use an electronic voter register or have a complimentary manual register, the High Court has already come in handy to resolve the dispute after seven civil society groups filed a petition.
The issue of electronic and manual voter register has been a bone of contention between the top two presidential candidates, Raila and Ruto, who have disagreed on which one should be used for the August 9 polls.
When the commission invited the candidates for a roundtable meeting to resolve the issue on June 29, they could still not agree, as Raila insisted on use of both electronic and manual register to identify voters while Ruto maintained that only electronic register should be used.
The standoff is what prompted the seven lobby groups to file the petition, seeking to compel IEBC to use manual voter registers in every polling station as a complimentary to the digital system.
They include Kenya Human Rights Commission, Katiba Institute, Kenyan Section of the International Commission of Jurists (ICJ), Haki Yetu, Inuka Kenya Ni Sisi Limited, Africa Centre for Open Governance and the Constitution and Reform Education Consortium.
They want the High Court to order IEBC to conduct the General Election by providing a manual register of voters in every polling station in Kenya to be used to identify voters in strict compliance with the provisions of Regulation 69(1) (e) of the Elections (General) regulations.
The suit was certified as urgent by the High Court and scheduled for hearing on July 9, with the outcome expected to determine voter identification during the August 9 polls.
When it comes to instilling discipline in political campaigns and reign in errant politicians, the electoral commission came up with internal disciplinary mechanisms to tame politicians who were causing alarm over the conduct of the forthcoming elections.
But the High Court put a break on the bid after IEBC summoned Murang'a Woman Rep Sabina Chege and Gatundu North MP Moses Kuria for alleging that the 2017 elections were rigged.
Justice Mrima ruled that IEBC has no authority to summon politicians to take disciplinary sanctions before they are nominated to contest, and that the commission cannot sit as a judge and prosecutor in its own case.