05 Oct

PROPOSED AMENDMENTS TO THE ELECTIONS ACT 2011 (AMENDED 2016)

Ref. TAKE/GEN/2017/10/0065/10/2017                                   


To : The Joint Committee on Election Laws Amendment 


Thro’  The Clerk of The National Assembly Parliament Building  Nairobi Kenya


RE: PROPOSED AMENDMENTS TO THE ELECTIONS ACT 2011 (AMENDED 2016) 

(The Election Laws (Amendment) Bill (National Assembly Bill No. 39 of 2017) and the Election Offences (Amendment) Bill (National Assembly Bill No. 38 of 2017)) 

The principal object of the Election Laws (Amendment) Bill (National Assembly Bill No. 39 of 2017) is to amend the Independent Electoral and Boundaries Commission Act, 2011, the Elections Act, 2011 (No. 24 of 2011), and the Election Offences Act, 2016 (No. 37 of 2016) to provide for the proper conduct of the affairs and business of the Independent Electoral and Boundaries Commission, and for effective management of elections.

On the other hand, the principal object of the Election Offences (Amendment) Bill (National Assembly Bill No. 38 of 2017) is to amend section 14 of the Election Offences Act, 2016 to ensure that the section conforms to Article 35 of the Constitution. Article 35(1) (a) provides that every citizen has a right of access to information held by the State. Article 35(3) further provides that the State shall publish and publicize any important information affecting the nation. The Bill seeks to delete subsection (2) of section 14 which limits the right to access to information held by the State as specified in that Article during the election period.


OBSERVTIONS ON LEGALITY OF COMMITTEE   

  1. The constitution of this committee is against the intentions of the Constitution of Kenya 2010  
  2. The standing orders of parliament do not envisage the creation of amendments to the law without having representative committees from all Parliamentary Parties
  3. The exhaustive time length usually associated with the stages through which the bill undergoes before it is enacted as law has been shortened purposely to ensure that the proposed amendments become law before the repeat presidential election.



OBSERVATIONS ON INTENTIONS OF AMENDMENTS

The facts as known by every Kenyan are that:

  1. That there was a general election on 8.8.2017 
  2. That IEBC made the final presidential declaration in the absence of about 10,000 form 34As. 


  1. The Elections were annulled by the Supreme Court citing illegalities and irregularities
  2. IEBC has scheduled a new election on 26.10.2017 which is barely 20 days away

It is common knowledge that Jubilee is a stakeholder in the coming elections and a majority at the moment in both houses of parliament. In this light, the impression being created by the amendment to the laws is that:

  1. Jubilee is using its majority in parliament to create “diaper” laws for one time use for October 26, 2017
  2. Jubilee is deliberately watering down sections of the law that it considers too tight specifically section 7A of IEBC Act 2011 which provides for no acting of the position of  
  3. That Jubilee is getting back at the Supreme Court and in effect implementing threats made by its leaders after the annulment of their election victory by the Supreme Court. 
  4. That Jubilee is essentially disempowering independent offices created by the Constitution in order to perpetuate personal and party tyranny 
  5. Jubilee appears determined to amend laws that will guarantee and safeguard a particular predetermined presidential election result.



AMENDMENT AGAINST LEGAL PRINICIPLES


There is a principle in law that states that you cannot “kill your mother and inherit her”. In this case the law cannot be made for specific person’s interest especially when the person’s amending the law suffer conflict of interest. Jubilee Party cannot make laws by themselves in which all other stakeholders in the elections are against it and purport to use the same laws for an election. This is against global best practices in management and administration of electoral processes.



PARLIAMENT ACTING IN VAIN


The law making function of parliament cannot be exercised in vain. Laws that are against the wording, spirit or intentions of the Constitution of Kenya 2010 will be thrown out by the Courts. Knowingly making such laws is acting in vain. Parliament must not act in vain.


SPECIFIC COMMENTS OF AMENDMENTS

1. The amendment to Section 6 by inserting sub section 1A and 1B lacks clarity and creates confusion on various issues:

  1. The word Absence is not defined in the Act. Absence can be created for the convenience of individuals and groups.
  2. How will the commissioners determine absence of Chairperson and deputy Chairperson? If they both go to the washroom at the same time, are they absent?
  3. Subsection 1B seems to give other commissioners unconstitutional powers to sack the chairperson and the deputy chair person.   
  4. The proposals in 1A and 1B will encourage divisions and infighting in the commission. It is possible that in the said absence the remaining commissioners may break into more than one group of three commissioners each. In such a scenario, the commission may hold two binding meetings and also have two legally elected chair persons. This will create confusion and disharmony in the commission. In fact it is possible for any splinter groups in the commission to announce two presidential candidates as winners. The law cannot be vague and uncertain as it may lead this nation into a grave electoral and humanitarian crisis. This proposal is setting up Kenyans for anarchy.

2. Amendment under section 39 1D

The proposed subsection seems to give room to legalization of fraud. By asserting that results on physical forms will prevail over the electronically transmitted results the section in effect is compelling the commission to rely on manual results irrespective of the authenticity. This proposal does not conform to the provisions of constitution. The proposal seems to defeat transparency and the obligation to conduct credible, free and fair elections. It is possible that a presiding officer may fraudulently fill in and sign a different form 34A after transmitting the correct copy. In such an instance, how do the results on the physical form prevail over the earlier electronically transmitted results? In the just concluded elections we presented to the IEBC evidence of scanned copies of forms 34B from same constituency bearing same serial numbers but showing different details.  This proposal is inconsistent and is a recipe for chaos.

3. Section 39 (1E)

The suggested amendment seems to completely negate the need for transmission of results electronically. As stated above we find it callous that the commission is bound to announce results based on physical forms whether forged or not. The proposal to compel courts of law not to invalidate results on the basis that electronic results are not transmitted is not only callous but suspect. The proposal seems to suggest that all the billions of tax payer funds that were invested in the KIEMS should go to waste. The drafters of these proposals seem to be protecting the actions of the individuals who failed to transmit results in the just concluded elections.

It is important to note that IEBC does not maintain a database of sample signatures of the presiding officers. How then will the commission be able to verify the genuine and forged forms, given that there is also the introduction of subsection 2 under section 83 which seems to defeat standardization of electoral forms?  

4.   Section 39 1(F)

The proposal is authorizing display of misleading results. Why would IEBC display numbers that are not binding results? What mischief is the amendment meant to create or to cure? This amendment is not in good faith. What purpose will display of the said numbers serve? Will this not shape public opinion and create grounds for discontentment if results turnout to be different? Is this not a recipe for chaos?

5. Introduction of section 44A  

There is no evidence that the current voter identification via EVIDs has failed or is difficult to use. In fact all parties in the SCOK case no 1 of 2017 were in agreement that voter identification was not in any way part of the irregularities that led to the nullification of the presidential elections. The current system is far much better than manual identification. There is no compelling empirical evidence that the current EVID system has failed. This proposal introduces uncertainties and seems to authorize other methods which may include manual identification which was blamed for multiple voting by some individuals in 2017. This proposal gives room to electoral fraud

6. Introduction of subsection 2 under section 83

What is the intention, rational or justification to legalise non-standardization of electoral forms? Taking into account the proposals under proposed section 39(1E), it is now clear that a fraudulent official can change the electoral forms legally and the fraudulently changed form will prevail over the original genuine result. Why would law authorize use of non standardized forms? Would the same proposal stand in the case of ballot papers?  

The qualification that "as long as the deviation is not meant to mislead" does not in any way counter any possibility of forgeries by POs and ROs as proposed section 39(1F) suggest that the results on physical forms prevail over electronically transmitted results.

7.  New Section 86A 

Subsection 2 is simply unconstitutional and misleading as it proposes to defeat the rights of Kenyans to choose a candidate of their choice after presidential election nullification.


With Very Kind Regards, 

Martin Gavole A. Mwenesi 

Secretary General, 

Thirdway Alliance Kenya

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