As the election day approaches, politicians are having a field day as the Independent Electoral and Boundaries Commission (IEBC) remains handicapped in implementing the Electoral Code of Conduct.
A High Court decision that found that declared the Electoral Code of Conduct Enforcement Committee unconstitutional, and that the committee has no powers to summon offenders, has led politicians to do as they wish, aware that the only avenue the High Court left of punishing those who breach the Code will take too long to bother them.
The High Court directed that IEBC refers any cases of breaches to the Electoral Code of Conduct to the Office of the Director of Public Prosecutions (ODPP) who will then cause investigations and prosecution at a magistrate’s court. Previously IEBC would summon the offending party and determine the cases within days.
Like in the BBI case where IEBC was faced with two conflicting judgments from the same court to the quorum of the Commission, so is this case on Electoral Code of Conduct. In an earlier decision, the High Court had affirmed IEBC’s powers to enforce the Electoral Code of Conduct.
But in a subsequent case that was brought by Murang’a Woman Representative Sabina Chege, the court said the opposite of what it had said earlier. The Murang’a legislator had been summoned by IEBC over rigging remarks she made in one of her campaign events.
Following the decision on the Sabina Chege case, IEBC appealed at the Court of Appeal, which appeal is pending determination. The President of the Court of Appeal, Hon. Justice Daniel Musinga had indicated that they would fast-track the appeal but so far no decision has been rendered.
Emboldened by the slow process by the ODPP route the High Court gave, politicians are on a roll. Following the recent political campaign-related violence witnessed at Jacaranda Groundschaos that momentarily stopped the Kenya Kwanza Alliance rally, IEBC chair Wafula Chebukati said the Commission’s hands are tied and instead referred the matter to ODPP to take action.
“In the premises, and as provided by Section 21 of the Election Offences Act, it is only the Office of the Director of Public prosecutions (ODPP) that has the power to order investigations and to prosecute offences under the Act,” Chebukati said.
In ordinary circumstances, IEBC says it would have promptly investigated and summoned the suspected perpetrators of the violence were it not for judicial orders declaring the Electoral Code of Conduct Enforcement Committee unconstitutional, and thereby withdrawing from the Commission the constitutional and statutory power to enforce the said Code.
Following the chaos at Jacaranda Grounds, and with no action so far taken, other political players have been emboldened. In Marsabit County, supporters of the incumbent governor, Mohamud Ali and those of his rival Chachu Ganya clashed ahead of a campaign rally by Azimio la Umoja presidential candidate Raila Odinga. The same happened in Mandera where again supporters of rival candidates clashed ahead of a rally by Odinga.
The DPP Noordin Haji has yet to take any action to date regarding the incidents. But even if he was to take action, the cases may not be concluded before the elections on August 9. He would have to ask the police to investigate, submit the file and if there is sufficient evidence, prosecute before a magistrate’s court – which could even take a year or more. (
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