A voter casts a ballot during the March 4 General Election. Photo/ FILE
NAIROBI, Kenya, Jun 14 – The Court of Appeal has nullified a clause in the Elections Act which allowed presidential candidates and running mates who lose in polls to enter Parliament through party nominations.
The National Gender and Equality Commission wanted the Appellate Court to outlaw the provision in the Elections Act allowing political parties to include names of losers in the presidential and deputy presidential race in the category of special interest groups.
The Court of Appeal declared Section 34(9) of the Elections Act null and void which means political parties cannot nominate presidential losers and their deputies to Parliament.
The nominations were made possible because of a change that Attorney General Githu Muigai made to Section 34(9) of the Elections Act, through a special issue of the Kenya Gazette on October 12, 2011.
In the issue, The AG changed Section 34(9) of the Act, by deleting the word “not”.
Before the deletion, the clause read: “The party list may not contain a name of any presidential or deputy presidential candidate nominated for an election under this Act.”
The Gender and Equality Commission moved to the Appeals Court in November last year to challenge a High Court ruling which upheld the amendment to the Elections Act by MPs in September 2012.
The commission argued that the amendment left little chance to special interest and marginalised groups.
The commission termed the amendment as selfish and mischievous, saying none of the presidential candidates and their running mates should be considered as part of special interest groups.
In his ruling High Court judge David Majanja noted the petition was premised on the fact that presidential nominees and their deputies did not fall under the special interest groups category envisaged in the Constitution, he however did not rule that the names of the election losers be excluded from the list.
The Constitution and the Elections Act recognises special interest groups as women, people with disabilities, the youth, ethnic minorities and marginalised communities.
The Appeals Court ruling effectively locks Coalition for Reforms and Democracy (CORD) leader Raila Odinga and his running mate Kalonzo Musyoka from being nominated to Parliament, after some of their supporters urged them to consider the option.
Under the election rules, parties are required to present 12 nominees to the Independent Electoral and Boundaries Commission to be considered in order of priority, with the slots being shared according to the number of seats each party gets in the House.
Prior to the MPs’ amendment, the seats were reserved for marginalised groups such as the youth, women, people with disabilities, ethnic minorities and marginalised communities, but the section was changed to include election losers.
Following the MPs’ amendment, the Commission for the Implementation of the Constitution (CIC) and the Friends of Raila (FORA) lobby went to court seeking that the changes be quashed, as they effectively locked out the youth from getting party nominations to Parliament.
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