, NAIROBI, Kenya, Aug 24 – The High Court in Nairobi has struck out a case that sought to challenge Friday\’s promulgation of the new Constitution.
Justice Hannah Okwengu has ruled that the court did not have the powers to hear the case and subsequently dismissed it.
“In setting up the Interim Independent Dispute Resolution Court, the Legislature intended to intentionally oust the High Court from dealing with any matters arising from the Constitution Review process,” she ruled.
Mary Ariviza, a church agent during the August 4 referendum filed the case last Thursday claiming that the Interim Independent Electoral Commission had not published the referendum results in the format required by law.
The IIEC and the Attorney General however argued that the High Court lacked the authority to entertain the petition, arguing that such powers lay with the Interim Independent Constitutional Dispute Resolution Court (IICDRC).
In her ruling, Justice Okwengu ruled that Section 44 (1) of the Constitution Review Act bars the High Court from hearing matters relating to the constitution review since there is a special court mandated to hear matters relating to the constitution review process and the referendum. (Ms Ariviza has since filed another case before the constitutional dispute court, which is still pending).
Speaking to the media after the ruling, Deputy Solicitor General Muthoni Kimani welcomed the decision, saying it had removed any hindrance to this Friday’s promulgation.
“The court has correctly dismissed that application, now the promulgation will go on as planned. There is nothing stopping the implementation that the government is about to commence,” she said.
Ms Ariviza had wanted the court to quash the gazzettement of the referendum results and block Friday’s promulgation.
In the other case before the Interim Independent Constitutional Dispute Resolution Court, Ms Ariviza along with Okotch Mondoh want a recount and scrutiny of all vote cast in the referendum.
They also want an independent audit of software that was used to transmit and tally the results claiming they may have been interfered with.
Ms Ariviza and Mr Mondoh claim that the IIEC flouted the law governing the referendum campaigns by failing to restrain the Yes proponents.
The new Constitution is expected to take effect from August 27, in a public ceremony at Uhuru Park in Nairobi. The day has been set aside as a public holiday.
President Kibaki, all Cabinet ministers, Members of Parliament and other senior government officials are expected to take fresh oaths of office to respect and protect the new law.