BY SAM ALFAN.
The High Court has dismissed a petition filed by South Mugirango Member of Parliament Silvanus Osoro seeking the nullification of an election law that allows Supreme Court to declare a petitioner the winner upon recount of votes cast.
The legislator argued that section 80(4) of the Election Act was unconstitutional in so far as it grants the Supreme Court to declare the winner upon recount of the votes.
The MP who is a close ally of President-elect William Ruto argued that the jurisdiction of the Supreme Court (as an election court for presidential elections disputes) can only validate or invalidate the presidential results.
Justice Hedwig Ong’udi, however, dismissed the petition alongside another filed by three voters who sought similar prayers.
The judge said the Supreme Court has the exclusive jurisdiction to hear and determine presidential election petition and the High Court has no business giving the apex court directions.
“I therefore, find that this court lacks the jurisdiction to hear this petition,” the judge said.
The politician had argued that the words of Article 140(3) of the constitution dictates that the challenge of presidential election to the supreme court is either to validate or invalidate the election and it does not confer any powers for the court to relook into the process and substance and decide as to the winner.
“In the Petitioner’s view, if the Election court finds that the person declared as winner by the Independent Electoral and Boundaries Commission (IEBC) did not meet the constitutional threshold, it can only void the elections and order the commission to conduct fresh elections within 60 days,” said the legislator.
He added that the jurisdiction of the supreme court to hear and determine disputes relation to the election of persons to the office of President are captured under Article 163(3)(a) and under Article 140 of the constitution, which provisions do not contemplate the apex court declaring any person as winner of the presidential election.
He further said the framers of the constitution did not intend that Parliament would legislate on disputes relating to Presidential elections.
“Article 87(2) categorically excludes presidential elections among disputes that Parliament shall legislate on their disposition and determination. Effectively, section 80(4) of the Elections Act , in so far as it touches on a dispute involving presidential election, is unconstitutional to the extent of the inclusion of presidential dispute,” adds Osoro.
Another case was filed by lawyer Ashfod Koome, Michael Asola and Eric Githinji have also filed a constitutional petition seeking the court to declare that only IEBC chairman Wafula Chebukati can declare a presidential candidate as having been validly elected president under under Article 138(10) of the constitution pursuant to a presidential election.
The trio also wanted the court to declare that the certificate of the election issued by IEBC chairman to William Ruto is legally valid unless or annulled by the supreme court.
They wanted the court to declare section 80 (4) (a) of Election Act No. 24 of 2011 (Rev 2016) unconstitutional , null and void to the extent that the said section purports to confer powers or jurisdiction on an election court to issue an order to IEBC to issue certificate to the Petitioner or losing presidential candidate upon recount of ballot cast.
