NAIROBI, Kenya, Apr 19 – The Independent Electoral and Boundaries (IEBC) says it is not entirely toothless following the High Court ruling that the Electoral Code of Conduct Enforcement Committee has no jurisdiction to deal with election-related offences.
Speaking during the Anglican Bishops and Senior Clergy Conference on Tuesday, the electoral body’s chairman Wafula Chebukati stated that IEBC has resolved to transmit such cases to the Office of Director of Public Prosecutions (ODPP).
“We invited some two individuals to appear before us but a high court judgement that came up that struck out the election code of conduct committee. What does that mean? That our teeth have been removed? That we can only drink porridge,” he posed.
“It means that cases that come ups during the campaign, we form an investigation team to investigate and forward the same to the Director of Public Prosecution,” he added
Chebukati however asserted that they are working on a litigation case to appeal the ruling by High Court Judge Anthony Mrima.
The High Court barred the IEBC from proceeding to hearing the vote-rigging cases against Murang’a County Woman Representative Sabina Chege and Gatundu South Member of Parliament Moses Kuria.
High Court has stripped the Independent Electoral and Boundaries Commission (IEBC) of 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,” Mrima stated in his ruling.
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,” Mrima ruled.
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,” Mrima stated.
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’,” Mrima ruled.
“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,” he added.
