NAIROBI, Kenya Dec 8 – The murky battle by officials at the Electoral Commission of Kenya to remain in office took a new twist on Monday after another case was filed at the High Court seeking to stop the imminent disbandment.
Former Runyenjes MP Njeru Kathangu and a Nairobi-based civil organisation Credo Foundation moved to court seeking to stop the government plan, arguing that it was against the law.
In a petition filed at the High court, their lawyer Winston Ngaira wants the court declare that the Constitution of Kenya Amendment Bill of 2008 which is due for debate in Parliament before it goes on recess unconstitutional.
"The amendments envisaged under the Bill are so fundamental and touch on the basic structure of the Constitution and should be subjected to a referendum by the people of Kenya,” Mr Kathangu argued in the court papers.
He argues that allowing the disbandment of the ECK would affect the gains made in realising a democratic society adding that Parliament had no authority to amend the Constitution without due compliance with its own provisions.
He also contends that Parliament as currently constituted had no moral authority to debate the Bill, which would pave way for the establishment of an Interim Independent Electoral Commission since the Kriegler report had said the entire 2007 electoral process was flawed, making the election of all current MPs unlawful.
“After the publication of the report, several politicians among them MPs and councillors elected in the aforesaid elections have publicly made demands for the disbandment of the ECK and the resignation of Commissioners allegedly on the basis that they were responsible and culpable for the controversies and flaws in respect of the 2007 general elections,” the complaint read in part.
This, they argued, meant that the head of state, MPs and councillors purportedly elected during the said polls were not validly in office.
Mr Kathangu and the NGO say it is imperative to have an independent, permanent and substantive electoral commission to ensure free and fair elections whenever they are held and to safeguard democracy.
To them, replacing the ECK with the IIEC – whose lifespan is only 15 months or three months after the promulgation of a new Constitution – would distort democracy and create a constitutional crisis.
“The temporary body to be created will be solely constituted, be answerable and accountable to Parliament,” the court papers indicate.
The case came against the backdrop of a spirited fight by the commission’s employees protesting against their impending dismissal, saying they should be given a fair hearing.
Their voice was reinforced by the civil society on Monday after the Kenya National Commission on Human Rights opposed government plans to sack all of them.
Chairperson Florence Jaoko argued that the move was tantamount to victimisation of all staff including those who were not implicated directly in the debacle.
She instead asked the government to launch investigations to find out those directly involved in bungling the elections.
“The fact of the matter is that ECK is not run by the Commissioners only. It is run by the Commissioners and other staff. But staff have got different levels of engagement,” Ms Jaoko said at a press briefing.
The ECK staff planned to hold a peaceful protest within the city on Tuesday followed by a hunger strike.
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