Katiba Institute & 3 others v. Attorney General & 2 others Constitutional Petition No. 548 of 2017;  eKLR
On the 6th of April 2018 the Constitutional Division of the High Court handed down a judgment on the constitutionality of provisions of the Election Laws (Amendment) Act No. 34 of 2017 (ELAA) which had amended three pieces of legislation: the Elections Act, 2011 (Elections Act); the Independent Election and Boundaries Act 2011 (IEBC Act); and the Elections Offences Act No. 37 of 2016 (Election Offences Act). Four public interest litigants, Katiba Institute, African Centre for Open Governance (AfricoG), Okiya Omtatah Okoiti and David Ouma Ochieng had filed separate petitions against the Attorney General, the Government Printers and the National Assembly challenging the constitutionality of these provisions. Their petitions were later consolidated.
The petitioners argued that the amendments hindered transparency and accountability in the election system and violated the constitutionally set national values and principles as well as the general principles of the free and fair elections. They argued that the amendments were meant to circumvent the majority judgement in Raila Odinga and another v Independent Electoral and Boundaries Commission & 2 Others  eKLR. On the other hand, the respondents argued that the amendments were constitutional and the Legislature was exercising its duties when it enacted the law.
The issues for determination were (i) whether the amended provisions of the IEBC Act dealing with the definition of the chairperson of the IEBC; filling of a vacancy in the chairperson’s office; the vice chairperson and other commissioners performing the duties of the chairperson when absent, exercise the powers and responsibilities, were unconstitutional; (ii) whether the provisions of the Elections Act dealing with transmission of election results, voter identification, declaration of election results, and annulment of election results as well as the holding of fresh elections were unconstitutional; and (iii) whether the amendments to two provisions of the Election Offences Act were unconstitutional.
The Court found that the amendments to the IEBC Act were unconstitutional as they negatively affected the functioning of the IEBC. With respect to the amended provision dealing with the definition of the chairperson of the IEBC, the Court found the provision too wide since only an individual appointed as per the Constitution could fall within the definition of a chairperson. With regards to the amended provision on the vice chairperson or other commissioners filling in a vacant office of the chairperson, the Court held that only a person who was qualified under the Constitution as a chairperson could fill in the vacancy and perform the constitutional functions of a chairperson and that any other person, whether or not in an acting capacity cannot be defined as a chairperson. On the amended provision that allowed the vice chairperson or any other commissioner to exercise the chairperson’s functions on reason of absence, the Court made a finding that it was unconstitutional in so far as it allowed someone not qualified under the Constitution to take the office of the chairperson. In addition, the learned Judge emphasized that the provision weakened the IEBC and affected its institutional independence. This was mainly because despite the Constitution protecting the chairperson’s tenure and independence, the provision presented an opportunity for other commissioners to oust the chairperson if he or she was absent. Lastly, on the amendments dealing with the quorum and decision making, the Court held that Parliament’s reduction of the quorum of the IEBC to at least half of the existing members (now 7 members) and not less than three members and further scrapping the unanimous decision of the commission and replacing it with the majority decision of the present members was unconstitutional. This was because the provision made it possible that at a given time, 3 members of the commission could form quorum and 2 out of 3 members could make a decision that would be binding on the commission. This, the learned judge argued, would hinder the decision making of an independent commission and could have far reaching consequences on democratic elections.
With respect to the amendments to the Elections Act the Court analysed provisions dealing with the transmission of results, voter identification, the declaration of results and annulment of election results and holding of fresh presidential elections. On the amended provision which sought to have election results transmitted electronically and delivered physically from the polling stations to the constituency tallying centres and the national centre without filling any prescribed form, the Court declared the provision contrary to the constitutional national values and principles and the electoral principles. This was because if there was no prescribed form for transmitting results then there would be no verifiable, accountable and transparent process in transmission of these results and it would have opened room for manipulation of the results.
The Court held that the amended provisions dealing with the physical and the electronic transmission of results were not clear and were unconstitutional as they were not transparent and could lead to manipulation of results. Further the Court held that by enacting the amended provision which stated that failure to transmit or publish election results in an electronic format shall not invalidate the results declared by the presiding and the returning officers, Parliament acted contrary to the constitutional principles of free and fair elections. On the amended provision which stated that the results that were streamed live were only for purposes of public information and not for the declaration of results by the IEBC, the Court held that this was contrary to the constitutional principles of transparency and accountability. This was because the live streaming of election results was one way citizens should be able to compare and confirm the accuracy between the live transmitted results and the final declared results. With respect to the amendment regarding instances when an election may be annulled, the Court first held that the Supreme Court had declined to determine the issue because it was pending before the High Court. It further declared the provision as unconstitutional since it departed from the constitutional requirements of a free, fair, and transparent election. This is because the amendment meant that for an election to be annulled it must not only fail to comply with constitutional provisions, but also the failures must significantly affect the results.
On the other hand, the Court found that the amendment dealing with the chairperson declaring a candidate as an elected president before all constituencies had transmitted their results if he or she was satisfied that the remaining results would not affect the election was constitutional. In addition the Court found the newly inserted provision which allowed the IEBC to put in place a complimentary mechanism for identification of voters was constitutional as it did not replace the electronic voter identification method but was only meant to aid it. The Court also upheld the amended provision which allows the IEBC in consultation with the relevant agencies, institutions and stakeholders, to make regulations for the better implementation of the Integrated Biometric Voter Registration, Electronic Voter Identification and the Electronic transmission of results in elections. The Court also found that the provision which was introduced and dealt with what happens after the Supreme Court annuls a presidential was constitutional as it addressed a gap in the law that the IEBC faced after the Court’s decision and a candidate withdrew from the elections. The Court further held that it was a necessary provision to allow clarity in case such a scenario were to arise again in future. Finally, the Court did not pronounce itself on the amendments to the Election Offences Act.