As the 2022 General Election campaigns gain momentum, the Judiciary is emerging as a major player with decisions that have the potential to sway the outcome of the polls.
Like in the 2017 polls when the courts affirmed that election results as announced at polling stations are final – a significant decision that was widely quoted during the presidential election petition – recent court decisions are also turning out to be big in the context of the 2022 elections.
Veteran constitutional lawyer, Dr John Khaminwa, says that while the decisions on election-related petitions may end up impacting the campaigns and elections proper, judges do not set out to influence the politics one way or the other.
“Courts have a duty to interpret the constitution whenever petitioned to do so regardless of the subject of the legal limbo. When doing so, the courts cannot be said to act overboard or in excess of their powers. Court decisions on election-related matters are meant to give the participants, including institutions like Independent Electoral and Boundaries Commission (IEBC), directions on how to conduct the exercise,” says Dr Khaminwa.
Some of those decisions like the nullification of the Building Bridges Initiative (BBI) bid to amend the constitution are providing campaign fodder for both sides of the political divide — and have made potential pre-election coalition agreements more complicated as there are no extra seats in the Executive to share.
Destroying our constitution
For instance, Deputy President William Ruto has been using the fall of BBI to hammer President Uhuru Kenyatta and ODM leader Raila Odinga.
“God, our heavenly Father, has come through for Kenya and stopped the coalition of the known, the mighty, and the powerful from destroying our constitution,” the DP said soon after the Court of Appeal upheld the earlier High Court decision nullifying BBI.
In his campaigns, he has used the BBI to create a distinction of the ‘hustlers’ versus the ‘dynasty’ narrative, arguing that the push to change the constitution was a con attempt by the powerful political leaders to create positions for themselves.
"It was a fraudulent, unconstitutional and null and void process. It does not deserve any mention in Kenya," he has said of BBI.
A section of Mount Kenya MPs are, on the other hand, using the collapse of the BBI to tell their constituents of what they missed when the courts killed the proposals like increasing the number of constituencies and more money to the counties. The group is led by Ndaragwa MP Jeremiah Kioni.
“We need a solution to our problems: the loss of the additional Sh53 billion, survival of our protected constituencies, sub-division of our large constituencies and increased allocation of bursaries – on ‘one man, one vote, one shilling’. We are not saying that other regions should lose for us to gain, we want our fair share,” said Mr Kioni.
An appeal is pending before the Supreme Court and its outcome, if it happens before the August 2022 elections, will again provide politicians with campaign talking points.
For governors like Tharaka Nithi’s Muthomi Njuki and Garissa’s Ali Korane, who were barred from accessing their offices during the pendency of their corruption trials, the courts may have given campaign fodder to their opponents as well as making it difficult for them to be cleared by the investigative agencies. In the same breadth, former governors Mike Mbuvi Sonko and Ferdinand Waititu are facing uncertain political futures following their impeachments.
Law Society of Kenya president Nelson Havi says their fate is sealed after the Ethics and Anti-Corruption Commission (EACC) and the courts intervened when the impeached Kiambu governor Ferdinand Waititu attempted to vie in a by-election.
“The fate of such fellows is sealed . That is why we have Chapter Six of the constitution which touches on integrity issues. You saw some of them, the likes of Waititu, who tried to come back and vie but the EACC and the courts got them. That was the case for Sonko too. The constitution is a serious document and that is why it provided clauses in Chapter Six to highlight how an elected leader should be. Even if they try again, the law will catch up with them again,” said Mr Havi.
Lawyer Peter Wanyama, however, says that Article 75(3) which provides that a person dismissed or otherwise removed from office for contravening some Chapter Six provisions is disqualified from holding any other public office does not apply to impeached governors.
“In any event, they would be eligible to run if they have challenged the impeachment in court and the matter is yet to be resolved,” said Mr Wanyama.
Meanwhile, Justice Anthony Mrima’s judgment on October 15 on the university degree requirement for MCAs has saved many political careers and will impact heavily on the 2022 elections.
The IEBC had notified aspirants that a mandatory university degree requirement for MCAs would kick in during the 2022 elections, thereby threatening to cut short the careers of hundreds of the ward representatives. Following an application by the County Assemblies Forum (CAF), the requirement has been thrown out.
“By that judgment 73 per cent of all the MCAs who were staring at being locked out, will be able to defend their seats. In some assemblies, 100 per cent could not have defended their seats,” he said.
The decision means that more candidates will likely seek the MCA job in 2022 unlike if the IEBC reading of the law remained.
Some of the decisions with an impact on the 2022 elections have been directed at the IEBC. For instance, the High Court has ordered IEBC to extend the enhanced voter registration by a week despite protests by the commission that there are no funds for that. Similarly, the Public Procurement Administrative Review Board (PPARB) is turning out to be a significant player in the preparation for the 2022 elections.
Like in 2013 and 2017 when the board intervened in disputes over tenders for key strategic election materials, it is the same situation again this year. The board has since nullified the tender for the Kenya Integrated Elections Management System (Kiems) kits and similarly the award of ballot paper printing tender to Greek company Inform-Lykos until a petition that was filed by a losing bidder, Africa Infrastructure Development Company, is heard and determined.
“As the chairman of the commission, I am very worried about this trend (of running to stop the procurement process) because what we are witnessing is purely business interests and nothing to do with irregular procurement,” said Mr Chebukati.
If this state of affair continues and leads to delay, it may force the commission to resort to using procurement methods that are likely to curtail competition and value for money.
Further, this is likely to interfere with early preparations and readiness to conduct free, fair and credible elections,” he added.
For Ford Kenya party leader Moses Wetang’ula , the Political Parties Dispute Tribunal (PPDT) almost sunk his bid to ‘clean’ the party of rebels.
A High Court order lifted the tribunal’s orders just in time, paving the way for him to take control of the party and handing him the mandate to enter coalition talks with other parties.
Besides the recent court decisions, others from 2013 and 2017 will continue influencing the 2022 elections. For instance, the decision on declaration of results at polling stations – commonly known as the Maina Kiai case – remains in place. It was filed by activists Maina Kiai, Khelef Khalifa and Tirop Kitur at the High Court in 2016 and escalated up to the Court of Appeal.
From the 2013 presidential election petition is the finding by the Supreme Court that the rejected (spoilt) votes do count as part of the votes cast in the computation of the constitutional numerical threshold of 50 per cent plus one vote needed to declare one an outright winner in the presidential election.
The court held that the phrase ‘votes cast’ in Article 138(4) of the constitution means valid votes. This remains and will be applied by IEBC in counting and tabulating votes.
However, public servants eyeing elective seats in next year’s elections are likely to be caught unawares following confusion on when they are supposed to exit the office.
IEBC, relying on the provisions of Section 43(5) of the Elections Act, says the government workers must resign and exit office by February 9, 2022 (being six months to the General Election) and it has since made a public announcement to that effect.
However, the said law was nullified by the court in a judgment dated March 29, 2017, for being enacted without public participation.
Labour relations court judge Njagi Marete found there was no evidence of public participation in the enactment of Section 43(5) and (6) or even the entirety of the Elections Act, 2011. He also declared that public officers can only leave the office to participate in the nominations or after the nomination process for the said General Election.
“Unless and until nomination, there is no compelling public interest that demands mandatory resignation of a public officer from public office,” said Justice Marete.
At the same time, MCAs aspiring to vie for parliamentary seats are also in a quagmire following a finding by the High Court that they are ineligible if they do not resign from their positions.
The disqualification is based on Article 99(2)(a) and (d) of the Constitution, which provides that a person is disqualified from being elected a member of parliament if the person is a member of a county assembly.
In the BBI’s proposed changes to the constitution which were nullified by the courts, the requirement for serving MCAs to resign to vie for parliamentary seats was one earmarked for amendment.
The judgment emerged from a petition filed by former Gatundu North MP Kung’u Waibara challenging the election of MP Wanjiku Kibe. The dispute is pending at the Court of Appeal.
