CONSTITUTIONAL PETITION NO 548 OF 2017
KATIBA INSTITUTE………………………………………………………..1ST PETITIONER
AFRICA CENTER FOR OPEN GOVERNANCE………………………2ND PETITIONER
OKIYA OMTATAH OKOITI……………………………………………….3RD PETITIONER
DAVID OUMA OCHIENG………………………………………………….4TH PETITIONER
VERSUS
THE HON. ATTORNEY GENERAL……………………………………..1ST REPONDENT
GOVERNMENT PRINTER…………………………………………………..2ND RESPODNENT
NATIONAL ASSEMBLY………………………………………………………3RD RESPODNENT
JUDGMENT
Introduction
[1] On 8th August 2017 the country held elections for various elective posts including that of the president of Kenya in which Uhuru Kenyatta was declared the winner. His closest challenger, Raila Odinga challenged that win in the Supreme Court in accordance with the Constitution. On 1st of September 2017, the Supreme Court delivered its verdict annulling the presidential election for failing to meet constitutional and legal threshold of a free and fair election and ordered a fresh election to be held under Article 140(3) of the Constitution.
[2] That annulment triggered the introduction of Election Laws Amendment Bill 2017 in Parliament to amend the Elections Act, 2011, The Independent Electoral and Boundaries Commission Act 2011 and The Election offences Act, 2016. The Bill was published on 27th September 2017 and despite strong opposition from a section of Kenyans, it had been passed by 11th October 2017 it was then placed before the Senate and passed and was finally transmitted to the President for Assent. The President neither assented to the Bill nor returned it to parliament as required by Article 115(2) of the Constitution. After 14 days the Bill became law by virtue of Article 116 of the Constitution. It was published in the Kenya Gazette on 2nd November 2017 thus become effective as the Election Laws Amendment Act No. 34 of 2017. It introduced significant changes in the management of election results, declaration of results and annulment of election results.
The petition
[3] Katiba Institute, a Constitutional research, Policy and Litigation Institute and Africa Centre for Open Governance (Africorg) a Non-profit Organization who were joined by Okiya Omtatah Okoiti and David Ouma Ochieng’, public interest litigants, instituted this petition against the Attorney General, the Chief legal advisor to the national government, and who represents the national government in civil proceedings, with the duty to promote, protect and defend public interest, (the 1st respondent), and the Government Printer, responsible for publication of Official government information and documents, (the 2nd respondent). Also joined in these proceedings as the 3r respondent, is the National Assembly which is responsible for enacting laws of the Republic.
[4] In their petition dated 1st November 2017 the petitioners challenged the ELAA, 2017 which was enacted by the 3rd respondent to amend various provisions of the Elections Act, 2011, The IEBC Act, and the Election Offences Act contending that the amendments are unconstitutional. The amendments under challenge include amendment to section 2 of the IEBC Act which introduced a new definition for the Chairperson to include the vice chairperson and a member elected by Commissioners, section 3 of the ELAA Act which amended section 7A of IEBC Act by introducing new subsections 4, 5 and 6 relating to a vacancy in the office of the Chairperson and Vice of Chairperson of IEBC. Subsection (4) provides that in the event a vacancy occurs in the office of the Chairperson the Vice Chairperson will perform the functions of the chairperson until a new one is appointed. Subsection (5) provides that where the positions of the chairperson and vice chairperson are vacant, a member elected by Commissioners shall act as Chairperson. Subsection (6) provides that in the case of the Vice Chairperson or a Commissioner acting as Chairperson, section 6(1) of the IEBC Act relating to qualifications of the Chairperson shall not apply. The petitioners contended that these amendments are unconstitutional.