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High Court judges erred on IEBC quorum – Githu

Thursday, July 1st, 2021 00:00 | By
Former Attorney General Githu Mungai (right) with Narc Kenya leader Martha Karua at the Court of Appeal in Nairobi yesterday. Photo/PD/GERALD ITHANA

Bernice Mbugua @BerniceMuhindi

The Independent Electoral and Boundaries Commission yesterday defended itself against a High Court ruling that it was improperly constituted.

Through lawyers Githu Muigai, Eric Gumbo and Moses Kipkogei, the commission yesterday argued that the High Court erred in law by finding that the agency lacked quorum.

The commission currently has the chairman and two commissioners.

While invalidating the BBI process, the High Court  declared that the commission was improperly constituted and issued orders stopping the agency from conducting a referendum.

The High Court judges also ruled that the agency needed to conduct voter registration for the referendum.

Court of Appeal President Daniel Musinga is presiding over the bench which consists of justices Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.

Githu, a former Attorney General, yesterday defended the commission arguing that the judges’ finding that the commission lacked quorum was based on non-existed law.

In deciding that the commission lacked quorum to verify or even consider the BBI Bill, the judges found that “the quorum for the conduct of business by the IEBC is five commissioners”. 

Superior court

The judges relied on IEBC Act (2011) second schedule Paragraph five which states: “The quorum for the conduct of business at a meeting of the Commission shall be at least five members of the Commission.”

But Githu argued that a judgement by High Court Justice Chacha Mwita had declared the provision to be unconstitutional.

In April 2018, Mwita quashed the election amendments of September 2017.

“The decision of Mwita remained jurisprudence until the matter was brought to the superior court...there has been no appeal on the matter,” Githu told the judges.

Githu argued that the IEBC Act had contemplated that vacancies would arise and the mere fact there was a vacancy did not render the commission unconstitutional.

“The work of the commission must continue because the law recognises the existence of a vacancy. The bench ignored several authorities that were brought to their attention,” he said.

The BBI case was heard by High Court justices Joel Ngugi (presiding), George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka.

In their judgment, the judges declared that IEBC ought to have carried out a separate, nationwide, voter registration exercise for the specific purpose of the intended referendum.

The judges also held that the verification of at least one million voters required special legal framework and that the process adopted was flawed.

But lawyer Gumbo argued that the commission was not obligated to authenticate the signatures.

“The Constitution says we shall verify the initiative and not the signatures. We are given this mandate because we are the custodian of the registered voters,” he told the court.

Gumbo argued that the court evaluated issues placed before it based on its own views and not the requirements of the existing law.

“The superior court erred in finding that there was no legal framework for the conduct of a referendum yet there exists provisions covering the full spectrum of the process,” he argued.

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