, NAIROBI, Kenya, Aug 23 – The High Court will on Tuesday determine whether it has jurisdiction to hear a case field by a poll agent challenging the validity of the referendum results.
This follows an objection by the Interim Independent Electoral Commission (IIEC) and the Attorney General (AG) that the High Court lacks the authority to entertain the petition which was filed by Mary Ariviza.
According to the AG and IIEC, the matter was filed in the wrong court since only the Interim Independent Constitutional Dispute Resolution Court (IIDRC) has mandate to hear such a case.
“This court has no power to handle or entertain the matter,” Deputy Solicitor General Muthoni Kimani told High Court judge Hannah Okwengu.
“We urge the court to reject the application and refer the applicant to the right forum for determination of the dispute.”
However lawyer Judy Madahana defended her move to file the case before the High Court, saying the IICDRC does not have the powers to invalidate the gazette notice, or stopping the promulgation of the new Constitution. She said under the Constitution of Kenya Review Act 2008, the constitutional court only has the mandate to grant reliefs on matters challenging the conduct of the referendum.
“The remedies sought by my client cannot be granted by the interim court,” she said. The power to quash the gazette notice or prohibiting the promulgation of the ratified Constitution is not with the IICDRC. It is only with the High Court.”
In her suit papers, Ms Ariviza claims the IIEC flouted provisions of the new law when it gazetted the results of the referendum on August 6 which gave the Yes side a 67 percent win.
She says that the said results were not properly gazetted and wants the High Court to stop the promulgation and publication of the new Constitution in the Kenya Gazette pending the determination of her case.
Ms Ariviza who was a church agent at Muthangari polling station further contends that the certificate publishing the results of the referendum was not valid as it did not give the results of the referendum as provided by the law.
According to her, the IIEC should have indicated in the certificate of the results of the referendum that the Proposed New Constitution has either been ratified or not.
“The certificate should have indicated the votes each side got both in words and figures,” she stated.
Ms Ariviza has filed another case before the IICDRC seeking a recount of the referendum vote and is asking the interim court to nullify the referendum results, order a total recount of votes and audit of the electronic software.
On Monday however, the IIEC went ahead and published the final results in a Special Gazette Notice clearly paving way for the promulgation of the new Constitution which is slated for Friday at a public ceremony to be presided over by President Mwai Kibaki.
Preparations for the August 27 ceremony are ongoing although the two cases are still pending.