October 20th 2017

Top Stories / National

Can the Judiciary maintain its new robustness into elections?

The fact that court heard the issue and gave an order so quickly was a bold insertion into a case where the government had failed. Hoping that this will help them terminate the strike. Patients are suffering due to the strike, many have died.

By Nyambura Muthoninmuthoni@kenyafreepress.comWednesday, 15 Feb 2017 14:26 EAT

Chief Justice David Maraga with President Uhuru Kenyatta at State House, Nairobi.

Chief Justice David Maraga on Monday assured Kenyans about the Judiciary's readiness to handle any disputes that will arise out of the August general elections is most welcome news. Every other chief justice since 1992 has made the same assurance, but the eventual verdict whenever the Judiciary's mediation was sought have uniformly been disastrous.

However, the current Judiciary is becoming more vibrant, if recent rulings are anything to go by. This week has notably brought four key rulings whereby the judges checked executive power in a ay that can provide confidence towards the elections. Today, the Court of Appeal ordered the release of seven medical doctors’ union officials who had been sentenced to one month in jail two days earlier. The court ordered fresh negotiations, which will be mediated by the Law Society of Kenya and Kenya National Commission on Human Rights.

It was a dramatic ending to a crisis of cedibility, with doctors languishing in jail while the main suspects who have robbed Kenyans walk scot-free. The parties agreed before a three-judge bench of Jamila Mohamed, Wanjiru Karanja and Hannah Okwengu. The fact that court heard the issue and gave an order so quickly was a bold insertion into a case where the government had failed. Hoping that this will help them terminate the strike. Patients are suffering due to the strike, many have died.

Recognizing the political implications of Monday's jailing of the doctors' representatives, the government had tried to shift responsibility for the jailing to the Council of Governors, with many pro-government bloggers stating that the administration had nothing to do with the contempt of court case that took the unionists to prison. This is after CORD seized the case and championed the doctors' release.

A day earlier, Justice Njagi Marete of the Employment and Labour Relations Court temporarily barred IEBC from disqualifying civil servants running for political seats who had not left public service by February 8. On December 1, 2016 Chief of Staff and Head of Public Service Joseph Kinyua directed public servants interested in vying for elective positions to resign from their current offices by February 7 to allow the six months period ahead of the August 8 election.

Section 43 (5) of the Elections Act allows the commission to disqualify candidates who will have not resigned from their public positions six months before an election. However, Eric Cheruiyot, the petitioner argued that the directive was discriminatory as it awarded Governors, Senators, MPs and MCAs an advantage of being in office while other public offices were denied the chance. It was his submission that public servants leave office after dissolution of Parliament to give them an equal advantage as elected members.

IEBC Chief Executive Officer Ezra Chiloba said the commission was only following the Elections Act that required public servants going into politics to leave their offices not less than six months to the elections. “Until the court declares the provision unconstitutional we have no choice but to implement it”. This ruling, while coming too late after the policy on the resignations was passed into law, should stimulate dialogue on the relevance of the policy.

There is merit in Mr Cheruiyot's claim that the law is lenient on incumbents of political office. If the principle is saving public resources, the law assumes that only those public servants yet to get into political office can abuse their power, yet we know that during elections, governors and other leaders remain in office, using public resources for their campaigns.

Also on Monday, the High Court extended the deadline for the registration of voters by two days. . Justice Enock Chacha stopped IEBC from closing the registration pending the determination of a suit filed by activist Okiya Omtatah. “Pending the hearing and determination of this suit, the IEBC is prohibited whether by itself, its officials or any person acting on their behalf from proceeding to give effect to the directive that the voter registration exercise ends on February 14,” ruled the judge.

The extension benefitted thousands of Kenyans who rushed to registration centres to beat the February 14. Mr Omtatah argued that the law allows IEBC to register voters until two months to the date of a general election, and that ending the registration now would deny thousands of Kenyans still waiting to get national identity cards. “The decision to terminate the registration of voters five months before the elections is calculated to deny Kenyans three months within which they can register.

Mr Omtata also wants the IEBC and the Director of Immigration and Registration of Persons to publish the names of Kenyans who have attained the age of 18 years and have not received national ID cards as well as a list of those eligible to vote but cannot get voters’ card before the deadline. The activist alleged that there was discrimination in issuing ID cards in areas perceived to be supporting the Opposition, and gave the example of Teso South constituency, where residents protested delays in getting their ID cards.

“Whereas persons in parts of the country perceived to be pro-government are issued with IDs within three days, persons from other regions are denied the cards. The non-issuance of IDs is calculated to suppress many young people who want to participate in the elections,” said Mr Omtatah.

Capping these rulings is the one by Justice Odunda cancelling the Sh2.5 billion ballot-printing tender awarded to Dubai-based Al Ghuraiar Printing and Publishing Company on account that it was unprocedural. Needless to add, corrupt procurement for EVID machines in 2013 led to a substantial delay that contributed to the machines collapsing on Election Day, and many machines paid for were not delivered so many months after the elections. If the courts can help steady the ship, the better for all Kenyans.

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