No need for radical surgery to Section 87 of the Election Act

Kabete MP Ferdinand Waititu argues with Mombasa governor at the Malindi by-election.

Sunday Memba

If the August House passes the Election Laws (Amendment) (No.3) Bill of 2015, (which is expected) it shall have done a dishonourable thing. It is an open secret that parliament is not made up of the best brains. Be that as it may, if Clause 23 of the Bill forms part of our law, it shall demonstrate that no modicum of common sense was even considered. But it is of no surprise as the Bill is introduced by one of them.

Parliament enacted the Election Law Act no 24 of 2011 by virtue of Article 87(1) of the Constitution of Kenya. Not considering the fact that the act has already been amended twice, they deemed it fit to amend Section 87(1) of the Election Act (law is not cast in stone anyway). This section was responsible for Senator Moses Wetangula’s series of problems this year. The senator successfully shoehorned his way out of the debacle which still raised eyebrows on how intellectuals interpret very simple constructed statutes in Kenya.

This section clearly provides that if one is found to have committed an electoral offence by an election court, his name would be forwarded to the Director of Public Prosecutions and the concerned speaker of parliament. More importantly is the High Court would have proved that the individual is guilty of an electoral offence. The speaker shall then publish a report and hand it over to the IEBC. The IEBC shall then consider the report and delete the individual’s name from the voters’ register. The DPP may opt to pursue criminal sanctions for the person found guilty of the offence. It is of my view that this law raises no issue to be considered for amendment.

The new amendment, which is very ridiculous, gives offenders the choice of repeating the election offences as long as they want. Their names can no longer be deleted. They enjoy election immunity. It provides that an election court sends a report to the DPP if it considers that one committed an electoral offence. The DPP may shall then send the report to the Inspector-General who investigates the offence (considering it may be the same offence the High Court found one guilty of). The DPP may then consider to commence prosecution or commence the file.

Legal questions arise when such an amendment is even suggested. The first is, if the court considers one to have committed an electoral offence, can the DPP, if he finds his case to be weak, consider closing the file? Considering courts globally in common law countries determine offences on the beam balance of beyond reasonable doubt, would it be necessary for the DPP to even commence proceedings of a case whose results were known before the case began? And if, for instance, the matter appears before the same court, can a different judgment be reached upon? This questions demand that this amendment be thrown to the dogs or be told to the birds.

We cannot gainsay the relevance of Section 87 of the Election Act. It was a reflection of Jesus’ parable, new wine in new wineskins. Its ultimate importance was to cure a mischief which hibernates and resurfaces during the election period. Many politicians commit election offences and thus a remedy would be to prevent them from vying to ensure the country gets morally-acceptable leadership.

Finally, our constitution is a transformative one, and it would be important if we all embraced transformation. To live up to this ideal, we need to be transformative and accept good change. In this spirit, Clause 23 of the Bill should never see the light of day.



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