IEBC HAS NO POWER TO SUMMON ANYONE OVER ELECTORAL CODE OF CONDUCT VIOLATION

Post by : Frank

The High Court has denied the Independent Electoral and Boundaries Commission (IEBC)  powers to summon any witness or candidate in violation of the Electoral code of conduct. Justice Antony Mrima termed the Electoral code enforcement committee chaired by Wafula Chebukati unconstitutional and illegal.

“Flowing from the foregoing, this Court finds and hold that the Respondent (IEBC) has no jurisdiction to either summon any witness or to conduct any hearing in relation to a complaint on breach of the Electoral Code or at all,”

This is following a case filed by Murang’a Women Representative Sabina Chege where she obtained orders to halt the case against her by the polls body. Chege had been summoned before the electoral code of conduct enforcement committee over vote rigging remarks in the 2017 elections which she made during a rally in Vihiga County.

Justice Antony Mrima termed the summons by the poll body unconstitutional as the electoral code can only be enforced on a candidate who has declared his or her candidature to vie under a political party or as an independent candidate.

“It is in public purview that according to the Notices and the election timetable released by the Respondent, party nominations are yet to be conducted and there has yet to be formal submission of nominations to the Respondent. As a result, the Petitioner cannot be deemed to be a candidate in the forthcoming elections,”

On March 9, 2022, Chege filed the petition through her lawyers James Orengo and Otiende Amollo which further stated that the enforcement committee is an illegal entity and unconstitutional. Further, Mrima stated that the poll body has no powers to conduct hearing or ruling on any investigations conducted following complaints.

In case of any investigations conducted the electoral agency should refer the materials to the Director of Public of Prosecution or prosecute the matter in High Court.

“Once the Respondent completes its investigations and forms the opinion that there is need for further action, the Respondent may refer the matter to the Director of Public Prosecutions or it may institute proceedings in the High Court,”

With the electoral code of conduct having been termed an illegal entity, the question by the petitioner seeking to establish whether the chairman of the commission Wafula Chebukati can chair the enforcement committee was passed by events.

“It, therefore, matters not whether the Chairperson of the Respondent rightly so chaired Enforcement Committee or otherwise. The Chairperson was without doubt riding on a ‘constitutionally-dead horse’,”

“An order of Certiorari be and is hereby issued, calling into this Court, and quashing the Summons and the Statement of Breach both dated 11th February 2022 by the Respondent to the Petitioner as well as all the proceedings conducted before the Respondent’s Electoral Code of Conduct Enforcement Committee in the matter of breach of the Electoral Code of Conduct by the Petitioner on 15th February 2022 or on any other date. The said Summons, Statement and proceedings are hereby quashed,”

The ruling now having a ripple effect on the subsequent summons issued by the poll body to individuals accused to having violated the electoral conduct. Gatundu South MP Moses Kuria might now be off the hook following the ruling having been summoned over vote rigging remarks he made during the United Democratic Alliance (UDA) National Delegate Conference (NDC) at Kasarani.

While addressing delegates during the NDC, Kuria alleged that the 2017 election was rigged, in favor of President Uhuru Kenyatta. It yet remains unclear whether the Chebukati-led body will appeal the decision.

Edited By: Chepkosgei Jedidah

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