How Jubilee’s draft law seeks to change election rules

Members of Parliament. (Photo: Courtesy)

If only one candidate remains in a fresh presidential election, he/she shall be declared president-elect without polls being held, proposes a Bill on electoral reforms.

The proposal in the Bill introduced in the National Assembly on Thursday during a stormy session seems to address threats by NASA presidential candidate Raila Odinga not to enlist his candidature for the repeat polls scheduled for October 26.

“Where only one candidate remains after the withdrawal, the remaining candidate shall be declared elected forthwith as the president-elect without any elections being held,” states a clause in an amendment to Section 86 of the Election Act on the procedure of a repeat presidential election.

The Bill seeks to principally address the shortcomings that led to the invalidation of the August presidential vote, watering down the requirement for electronic transmission of the results and instead placing manual transmission as the legally binding process.

It also prescribes a custodial sentence of up to 15 years for any presiding or returning officer who knowingly refuses to sign, submits incomplete forms or wilfully alters or falsifies documents relating to elections.

Irregularities and illegalities in electronic transmission of results and claims that some poll officials failed to sign forms used to declare the poll outcome were at the centre of the Supreme Court reasoning for invalidation of President Uhuru Kenyatta’s re-election.

The Bill further explains the candidates who are supposed to take part in the repeat elections, where the polls are nullified through a petition, clarifying that only those who successfully petition an election are eligible to contest in the repeat polls.

“Where the petition was filed by a person or persons who are not candidates in the original election, then each of the candidates in the original election may participate in the fresh election,” states another clause. Thirdway Alliance candidate in the annulled election Ekuru Aukot is currently before the High Court seeking to be included in the ordered repeat poll, after the Independent Electoral and Boundaries Commission (IEBC) only listed President Uhuru Kenyatta and Raila as the only nominated candidates for the polls.

On Thursday, Jubilee Party used its numerical strength to fast-track the process of amending the raft of election laws, disregarding uproar from their NASA counterparts who protested the haste with which the draft law was being pushed.

Uhuru’s administration has made no secret its desire to make several changes to the election laws following the nullification of his re-election in the August polls.

His party’s legislators laid ground for the amendments through the Bill to change the Elections Laws (Amendments) Act 2017, tabled in the House by Majority Leader Aden Duale.

Proposed changes

But apart from the transmission process, the amendments target both the IEBC Act and the Elections Act.

The proposed law makes changes on who is supposed to be the national returning officer of the presidential election, stripping the IEBC chairman of the mandatory powers of declaring the results.

The proposed changes to the IEBC Act seek to arrest a possible crisis in the event of the resignation or otherwise of the IEBC chairperson, giving the vice chairperson the legal mandate to assume full powers of returning the vote for the presidential election.

The proposed new clause in Section 6 of the IEBC Act also states in the absence of chairman and vice chair, other commission members will elect one of them to act and exercise the chairperson’s powers and responsibilities until the position is substantively filled.

Currently, the law only allows the chairperson the mandate for such duties as acting as the national returning officer.

The draft law also removes the strict requirement IEBC chairperson must be a lawyer, and qualified to hold the office of Judge of the Supreme Court.