President Kenyatta defends proposed changes to Electoral laws

President Uhuru Kenyatta meeting a delegation of Jubilee women leaders from every region of the country at State House, Nairobi. PHOTO: COURTESY.

Nairobi, KENYA: President Uhuru Kenyatta has supported the move by Members of Parliament  to amend some of the elections laws to suit the coming October 26 elections.

The President who was addressing women leaders at state house on Monday, said that the act of trying to make some amendments that will streamline how elections are conducted, is also according to the Supreme Court ruling that elections should be repeated strictly according to the law.

“You cannot have your cake and eat it,you wanted the decision, you take full decision,” he said.

Mr Kenyatta said that the directive by the Supreme Court to nullify the elections using just forms was overturning the will of the people which should not be repeated when the new law is in place.

The president, who was seen directing his point to the opposition, said that as Jubilee, they are ready for the repeat of elections urging their competitor to do so without issuing unnecessary conditions.

Jubilee Party used its numerical strength to fast-track the process of amending a raft of election laws, disregarding uproar from their National Super Alliance (NASA) colleagues who protested the haste with
which the proposed law was being pushed.

President Uhuru Kenyatta’s administration has made no secret its desires to make several changes to the election laws following the nullification of his re-election in the August polls and his party’s legislators laid ground for the amendments through the Elections Laws (Amendments) Act 2017, tabled in the House by Majority Leader Aden Duale.

The Bill seeks to principally address the shortcomings that led to the invalidation of the August presidential election vote, watering down the requirement for electronic transmission of the vote and instead placing manual transmission as the legally binding process.

It also prescribes a custodial sentence of up to 15 years for presiding or returning officers, who knowingly refuses to sign, submit incomplete forms or willfully alters or falsifies documents relating to elections.

Irregularities and illegalities in electronic voter transmission was at the centre of the Supreme Court reasoning for invalidation of President Kenyatta’s re-election, while some electoral officials were accused of failing to sign forms used to declare the election results.

But apart from the transmission process, the amendments, which targets both the Independent Electoral and Boundaries Commission (IEBC) Act and the Election’s Act, the law appears keen to address the threats by
NASA presidential candidate Raila Odinga not to enlist his candidature for the repeat polls, saying in the event that only one candidate remains in the race, then the candidate should be declared president elect without the polls being conducted.

The newly introduced clause also clarifies the candidates who are supposed to take part in the repeat elections, where the polls are nullified through a petition, clarifying that only those who successfully petition an election are eligible to contest in the repeat polls.

“Where only one candidate remains after the withdrawal, the remaining candidate shall be declared elected forthwith as the President-elect without any elections being held,” states a clause in an amendment to
Section 86 of the Election Act on the procedure at a fresh presidential election.

“Where the petition was filed by a person or persons who are not candidates in the original election, then each of the candidates in the original election may participate in the fresh election,” states another clause.

The proposed law also makes changes on who is supposed to be the national returning officer of the Presidential election, stripping the IEBC chairman of the mandatory powers of declaring the results.

The proposed amendment to the IEBC Act seeks to arrest a possible crisis in the event of the resignation or otherwise of the IEBC Chairperson, giving the Vice Chairperson the legal mandate to assume full powers of returning the vote for the presidential election.

The proposed new clause in Section six of the IEBC Act, also states that in the absence of the chairman and the vice chair, then other members of the Commission will elect one of them to act and exercise the powers and responsibilities of the chairperson until the position is substantively filled.

Currently, the law only allows the Chairperson the mandate for such duties as acting as the national returning officer.

The proposed law also removes the strict requirement that the holder of the position of the chairperson of the IEBC be a lawyer, and qualified to hold the office of Judge of the Supreme Court, only requiring that such a candidate be a holder of a degree from a recognized university in the fields of public administration, public
finance, governance, electoral management social science or law.

But the holder must have a proven experience in the fields for a period not less than 15 years.

This means that if passed, current Vice Chairperson of IEBC Vice Consolata Nkatha Maina, who is not a lawyer can assume, by acting or substantively, the role of the chairperson, in the event that chairman Wafula Chebukati exits the position.

On results transmission, the proposed law introduces new subsections, placing manual transmission of results above the electronic mode.

“Where there is a discrepancy between the electronically transmitted
and manually transmitted results, the manually transmitted results shall prevail,” states the proposed new subsection of Section 39 of the Elections Act.

A further subsection adds: “Any failure to transmit or publish the election results in an election format shall not invalidate the result as announced and declared by the respective presiding and returning officers at the polling station and constituency tallying centre respectively”.

This means that unlike what happened, the Supreme Court will not declare a vote invalid over failures or irregularities in electronic transmission.

The proposed law also appears keen to avoid a situation where an election can be invalidated as a result of use of electoral forms having deviations, even when the use of such forms is not meant to mislead.

“Pursuant to Section 72 of the Interpretation and General Provisions Act, a form that is prescribed by this Act of the regulations made there under shall not be void by reason of a deviation from the requirements of that form, as long as the deviation is not calculated to mislead,” states a new subsection in Section 83 of the Elections

Among the reasons raised for nullification of the presidential vote were anomalies found in the Forms 34 A, B and C, used to determine the vote tally, with petitioners arguing the forms had deviations from the original copies, with some lacking security features.