I was one of the Jubilee legislators who supported the Elections Amendment Act last week. As expected NASA were quick to throw out all manner of accusations, including allegations that Jubilee is using its tyranny of numbers to compromise election laws to benefit President Uhuru Kenyatta unfairly during the October 26 election. Of course this is completely false, but NASA has never allowed facts to stop them from spinning a good propaganda tale.
The fact is that the election amendments passed by Parliament are about removing any grey areas in the Kenyan electoral laws. The amendments especially deal with the issue of what is ultimately most important in an election – the process of transmitting votes, or the votes each candidate gets – by making it imperative for a court to look at both the process of an election and the result of an election (number of votes cast), before determining the validity of an election.
For example, after the General Election on the August 8, 2017 NASA argued that IEBC Chairman Wafula Chebukati announced presidential results before receiving all the form 34As and 34Bs. We also heard that electronic transmission failed in some areas due to unavailability of 3G and 4G networks. The election amendments bind the IEBC Chairman, as the National Returning Officer, to first receive all 34As and 34Bs, validate them, and reconcile them before announcing presidential poll results. They also make the hardcopy Form 34A from the polling station the original source document, in case there is no electronic connectivity in a particular polling station.
Again, analyzing the Supreme Court decision it is clear that part of what led to the nullification of the August 8 presidential election was that some of these Forms 34As were not signed by the respective Presiding Officers, and that some constituency Returning Officers did not sign their Form 34Bs.The election amendments make it a criminal offence with a jail term of up to 15 years, for any Presiding Officer or Returning Officer to knowingly refuse to sign a required document, or to submit an incomplete document, or to wilfully falsify a document relating to elections.
In addition, good corporate governance demands that there is plan for continuity in case current leadership is indisposed. Even our own Constitution plans for a situation where the President and Deputy President are indisposed, and proposes a way forward. This election amendment proposes a continuity process in case the IEBC Chairman, or the Chief Justice of the Supreme Court, is indisposed.
Finally, Parliament has set two-thirds majority as the threshold on passage of laws with far-reaching consequences on the nation. These amendments set a similar threshold for such decisions, by the Supreme Court or the IEBC.
On the debate about whether changes to the election law can be effected mid-stream to an election, we should all note that there was no problem effecting the Maina Kiai decision that made constituencies final tallying centres, despite it being passed a few weeks to the August 8 General Election. The same case will certainly apply to any amendments on electoral law by Parliament.
But we must call out NASA. In the run up to the August 8 elections, NASA and its affiliates – including its coterie of NGOs – filed for electoral changes 47 times! NASA went even further and used un-constitutional means to force IEBC commissioners from office.
All these actions caused very fundamental changes to how elections are conducted in Kenya and disorganized very critical timelines to the process. But no one claimed this was unfairly benefiting Raila Odinga.
Today when Jubilee makes electoral changes – according to the law and using its legal and constitutional mandate as a parliamentary group – to clarify and improve the electoral process, NASA and these same NGOs howl in protest and call for mass action and street demonstrations!
(Wambugu is the MP, Nyeri Town Constituency)