ECK takes poll battle to court

November 10, 2008 12:00 am

, NAIROBI November 10 – Embattled Electoral Commission of Kenya (ECK) officials on Monday moved to the High Court to block the possible dissolution of the commission, following a damning indictment of its handling of last year’s general election.

ECK chairman Samuel Kivuitu and 21 other Commissioners through lawyer Kibe Mungai filed a case in court contesting the likely abolishment through a proposed Bill in Parliament.

“The scheme to disband ECK and remove its members has now morphed into a proposed Bill which seeks to disband ECK and replace it with a temporary body styled as: “The interim Independent Electoral Commission through the repeal of section 41 of the constitution,” the court papers read in part.

Mr Mungai claimed that the move to disband the Commission would be illegal because Parliament has no unlimited powers to amend the constitution to make lawful that which is prohibited by the same constitution.

“The petitioners contend that it is patently illegitimate and an abuse of power for Parliament to abolish constitutional offices and replace them with temporary bodies in the forlorn hope that a new constitution will be promulgated within some definite period in future.  Such reasoning and political adventure are the kind of stuff that precipitate constitutional crises,” he said.

He said that his clients enjoyed security of tenure which guards them from removal by means of executive decree or proclamation on the one hand and legislative pressure in form of resolution or constitutional amendments.

“Clearly, the principal at stake goes beyond ECK and the unspecified sins it has committed,” the lawyer claimed.

Mr Mungai said that the disbandment of the Commission would amount to a violation of the commissioners’ rights to fair hearing, protection of the law, protection from deprivation of property and the right not to be discriminated against.

Vice chairman Kihara Muttu swore an affidavit in the case and confirmed that the commissioners were apprehensive that their constitutional rights would be violated.

Mr Muttu said that early last month, a Ministerial Committee was appointed by the government to study a report by the Independent Review Commission which was chaired by retired South African Judge Johann Kriegler.

He alleged that he had information that the committee had resolved to force them out of office by amending the constitution in Parliament.

“The committee has drafted a Bill that indeed confirms our worst fears about the determination of some politicians to get their way even if it takes breaching the provisions of the existing constitution and all the implied limitations, checks and balances in constitutional democracies of which Kenya is a proud member,” Mr Muttu claimed.

The Commissioners want the court to block the government from ousting them office or disbanding the commission, pending the hearing and determination of the case.

They also want the government restrained from appointing an interim body to replace them until the case is concluded.


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