High Court invalidates sections of the Amended Elections Act, 2017

The High Court has declared sections of the Amended Elections Act of 2017 that touch on electoral commission quorum in decision making, transmission of election results and presidential results announcement unconstitutional.

Justice Chacha Mwita argued that some clauses of Section 39 and the whole of Section 83 of the Act failed the constitutional test.

He also declared some Sections of the IEBC Act 2011 and paragraphs of Second Schedule to the Act as constitutionally invalid.

One of the Sections stipulated that IEBC could announce the results of the presidential election in the absence of the chairman.

Other changes were that if there is a discrepancy between the manual and electronically transmitted results, the manual results prevail.

One of the Sections had also stipulated that failure to transmit the results electronically shall not be used to invalidate the results.

Justice Mwita ruled that the said amendments were only meant to take the country backward.

“I am of the opinion that certain amendments introduced through the Elections Law (Amendment) Act No.34 of 2017 failed the constitutional test of validity,” he said.

The IEBC Act had been amended in the Second Schedule by deleting the word “five members of the commission” in fifth paragraph and substituting with the words “half of the existing members of the commission, provided that the quorum shall not be less than three members”.

However, Mwita declined to declare Section 86a invalid, saying it clears a lacuna that made the holding of the 2017 fresh presidential election a challenge to the commission.

“The section clarifies what should happen when only one candidate remains after the withdrawal of the other(s) and the timelines. The Section is necessary for clarity and efficiency. I see no constitutional invalidity,” said the judge.

The case had been filed by two lobby groups, Katiba Institute and the Centre for Open Governance (Africog) who claimed the amendments made to the Act will significantly confuse relevant laws on elections including regulation of some aspects on the petitions challenging the August 8 polls.

Through lawyer Waikwa Wanyoike, the two groups claimed that the changes made to the election laws are confusing in regard to the laid down principles of the Supreme Court on critical constitutional aspects that are relevant in the adjudication of numerous election petitions before the High Court and magistrates’ courts.

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