MPs propose amendments to election laws

A House committee has proposed far-reaching changes to the constitution to improve the conduct of elections including extension of timelines in the hearing and determination of presidential election petitions.

The committee also wants the final decision on when to review boundaries and the names of constituencies to lie in the hands of Parliament, for flexibility.

In a report tabled in the National Assembly, Justice and Legal Affairs Committee (JLAC) has agreed with a request by the Judiciary to have the constitution amended to extend the timeline for hearing of presidential petitions by the Supreme Court from 14 to 21 days.

The committee agreed with recommendations of National Dialogue Committee (NADCO) to amend Article 140(2) of the constitution to increase the timeline for hearing and determination of the presidential elections.

“The committee observed that the proposal sought to increase the number of days to determine disputes arising from the presidential election by the Supreme Court, from 14 to 21 days due to constraints imposed by the strict timelines. On several occasions the Court has delivered judgements and reserved reasons thereto. The Committee was in support of the proposal,” the report reads in part.

In its report, NADCO endorsed the extension of presidential election petition timelines within which the Supreme Court should consider and rule on contested outcomes from 14 to 21 days.

Boundary review

The decision of the committee comes after the judges in 2022 called for an amendment to the law to allow the supreme court to hear and determine presidential petitions and write its judgements.

The Constitution of Kenya grants the right to any person to challenge the presidential election result within seven days from the date of its declaration.

In the case of the 2022 Presidential election pitting President William Ruto and his main challenger Raila Odinga, IEBC declared the results on August 15 which capped the deadline for petitioning to August 22. Nine petitions had been filed and the petitioners had 24 hours after filing to serve the respondents, who included William Ruto, Independent Electoral and Boundaries Commission (IEBC), the chairperson Wafula Chebukati and other commissioners.

In the report that contains a number of recommendations relating to the proposals in the NADCO report, the committee also agreed with a proposal to empower Parliament to extend the period of reviewing the names and boundaries of constituencies beyond the prescribed period.

The extension, the committee said, is to be made through a resolution passed by a majority of all Members of the National Assembly and a majority of the county delegations in the Senate.

No IEBC

Under Article 89(2) of the Constitution, IEBC is required to review the names and boundaries of constituencies at intervals of not less than eight years and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament.

The process of boundaries delimitation ought to have started months ago after Ruto assented to the Independent Electoral and Boundaries Commission (IEBC) Amendment Bill, 2024 that kicked in the process of appointing commissioners into office to carry out the process.

At the moment, the commission cannot transact any business as the term of the former commissioners including chairman Wafula Chebukati and commissioners Boya Molu and Abdi Guliye came to an end while three of the four commissioners Juliana Cherera, Francis Wanderi and Justus Nyang’aya quit to avoid facing the Aggrey Muchelule Tribunal that was formed to investigate her while the fourth commissioner Irene Masit was forced out after the tribunal recommended her sacking.

The committee also agreed with a proposal to amend the Constitution on the procedure to be observed during presidential elections to provide that declaration of the results of a presidential election by the chairperson of lEBC is to be done after verification of the results by IEBC.

 “Noting the distinction between an independent office and a commission, the Committee observed that the proposal is in line with the court’s finding that decisions of a Commission must be made by the absolute majority and not individual members,” the report states.

Despite the IEBC promptly resolving electoral disputes on previous occasions, the committee noted that the power to settle these disputes is sufficiently provided for in the Political Parties Act.  The provisions confer this power to the Political Parties Disputes Tribunal, allowing appeals to the High Court on points of law and facts and further appeals to the Court of Appeal on points of law with decisions of the Court of Appeal being final.