Courts generally do not legislate. Parliament does. But when courts formulate principles of law, akin to legislation, Parliament may, if displeased with the court’s reading of a statute, intervene and provide an interpretive guidance or even reverse the rule developed by the court while staying within the remit of the Constitution.
Indeed, this is a well settled position. In the United States for instance, Chief Justice John Roberts while responding to a question during his confirmation hearing before the Senate Judiciary Committee in September 2005 was categorical that; “The final say on a statute is with Congress, and if they don’t like the Supreme Court’s interpretation of it, they can change it.”
Unsurprisingly, the US Congress has on several occasions reversed the findings of its Supreme Court. Thusly, in 1976 when the court ruled in General Electric v Gilbert that pregnant women could be discriminated against in the workplace as such discrimination was neither unconstitutional nor legislated against, Congress came back two years later with the Pregnancy Discrimination Act, thereby legally adding pregnancy related discrimination as one of the forbidden grounds.
When the court put sharp limits on bosses’ liability for under-paying female employees, Justice Ruth Bader Ginsburg noted in her dissent in 2008 that “the Legislature may act to correct this”.
Accordingly, Congress passed the Lily Ledbetter Fair Pay Act of 2009. By so doing, Congress restores what it considers the correct understanding of the statutory scheme in relation to high salience policy issues such as civil and political rights. Understandably, statutory amendments in the nature of corrective overrides usually divides congress along party lines.
On 20th September the Supreme Court of Kenya (SCOK) handed down its detailed judgment in a petition challenging the re-election of President Kenyatta. By a 4-2 majority, the SCOK invalidated the presidential election. In so doing, SCOK departed from the well-settled precedent, which countenanced invalidation only in circumstances where irregularities have material bearing on election outcomes.
The Maraga Court instead formulated a new principle of law, namely that: under Kenya’s Constitution and law, if the electoral management body (IEBC) fails to transmit results of a presidential election according to the technological roadmap set out in the law and using the stipulated forms and formats, then notwithstanding that no breaches of the law was witnessed in relation to voter registration, voter identification, actual voting and no matter the accuracy of the vote count, then the election ought to be invalidated.
The rule as propounded by SCOK privileges and elevates the electronic transmission process over and above all other crucial processes that are indicators of democratic elections.
These processes include voter registration (which in our case enfranchised over 19 million odd voters nearly half of whom are first time youthful voters); voter identification on polling day, which was a remarkable success (according to observation by credible institutions such as ELOG) with no reports of persons registered being denied an opportunity to exercise their article 38 right to vote, and; most crucially, the actual voting itself that took place across 40,883 polling centres peacefully, and whose results were verified and declared at the vast majority of polling centres and constituency tallying centres.
This principle is worrying, and it is understandable that Kenya’s Legislature has responded with proposed amendments designed to ameliorate its impact on any future elections.
The Election Law (Amendment) Bill 2017 must therefore be seen in its proper context as Parliament’s attempt to address various emerging operational and institutional concerns in order to secure a smoother re-run of presidential elections come 26th October 2017.
This attempt is neither nefarious nor untimely, but lies appropriately within the constitutional mandate vested upon Parliament. Among the proposals is an amendment to Section 39 of the current Election Act to address this article’s specific concern.
It includes the proposal that “any failure to transmit or publish the election results in electronic format shall not invalidate the result as announced and declared by the respective presiding officers at the polling station and constituency tallying centres respectively.” (Section 6 (IE) of the proposed amendment).
This amendment gives primacy to the polling and constituency tallying centres as proper locus for the election, and the most apposite units for verification given the presence of the primary election material, namely the ballot papers, and agents of all parties. The amendment is also consistent with the Appeals Court decision in Maina Kiai, which determined the finality of results announced at constituency levels and circumscribed the role of the IEBC Chair to that of declaration of results as conveyed.
Thus, in a country where broadband connectivity remains a huge challenge particularly in far-flung areas, and in a global context where technology presents complex vulnerabilities, it is patently unreasonable and outright reckless to expect electronic transmission to be faultless and to demand this to be the single measure of a successful election.
(Dr Sing’Oei is an Advocate of the High Court of Kenya and a Legal Advisor, Executive Office of the Deputy President)