Analysis Of The Election Laws Amendment Bill of 2017

Parliament has today embarked on tabling the election laws amendment bill of 2017 which seeks according to some legislators,remedy or reduce the irregularities identified by the the Supreme court while nullifying the elections.

NASA MPs are opposed to the said amendments saying that they have been tabled in a hurry and that they should wait until after the fresh elections in order for it to be tabled.

A question that clearly arises from this is that will these amendments if passed as they are will the said amendments be applicable to the fresh presidential election? Pursuant to article 140 (3) once the Supreme court nullifies a Presidential election, the IEBC shall conduct a fresh election within 60 days.

One might argue that this section makes the October 26 election as a continuation of the  August 8 poll and therefore the amendments may not be applicable.

Others may argue that the fresh elections are an entirely different process and therefore if passed on time the laws shall be applicable.

The amendments seek to reduce the number of commissioners that make the decisions by removing the word ‘five’ as is the current requirement and substituting it with half the the commissioners but prescribes the quorum to be three.

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The amendments include the putting in place of a complimentary  mechanism under section 44A. This is in line with the identification of voters ensuring that it is simple, accurate, verifiable and secure. This is as prescribed by the supreme court to have a complimentary system in case technology failed. This is in compliance of article 38 of the constitution.

An elaborate feature of the bill is that in the event that there will be a discrepancy with the electronically transmitted results the manual results shall prevail.

The Bill also seeks to clarify who will vie for an election after nullification, it states that the electoral body will gazette the date of the fresh elections within seven days. It states that in the event that the petition is filed by the runner up and the presidential elect are  the candidates that will be allowed to vie in the fresh elections.

It further says that if the petition is brought by a party that did not vie then all presidential candidates will be allowed to vie in the the fresh elections.

Section 83A seek to delete the word ‘or’ appearing immediately before the words ‘that the non compliance’ in the renumbered subsection (1) and substituting therefore the word ‘and’. The implication of this will be that non compliance of written law shall not be a ground to void an election provided that the non compliance did not affect the result the election.

It is a belief that this bill was tabled in bad faith saying that the issues that were raised by the supreme court were administrative and did not require an amendment of the electoral laws. They say that if there was to be a quagmire in the process or in understanding the judgement given by the supreme court the IEBC had an option of seeking advise from the Supreme court as prescribed under article 163 (6) of the constitution which states that a state organ can seek the advisory opinion on matters law.

In my opinion, the judiciary as an arm of government is the one mandated to interpret law and therefore would be at a better position to explain whether the amendments would be a step in the right direction or a political reaction meant to only to give temporary reprieve to those who are for the amendment at the detriment of those who are against it.

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Written by Merxcine Cush


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