The High Court in Milimani Nairobi has struck out two petitions filed by South Mugirango MP Silvanus Osoro and three voters seeking to challenge powers of the Supreme Court to declare a presidential election winner in the event of a re-tally of votes.
The petitioners had argued the Supreme Court can only invalidate a presidential election and order for fresh polls but not declaring a winner.
They also sought an interpretation of the law on the powers conferred to the Independent Electoral and Boundaries Commission (IEBC) Chairman on declaration of presidential election results.
But Justice Hedwig Ong’undi found that the High Court does not have the authority to hear and determine the case as filed by Mr Osoro and voters Ashford Koome Mbogo, Michael Ochieng Asola and Eric Githinji.
“I find under Article 140(2) of the Constitution, the Supreme Court hears the presidential election petition and gives a decision. It is not for this court to direct the Supreme Court on what to do or not do,” Justice Ong’undi said while striking out the petitions.
MP Osoro and the voters wanted the High Court to declare that Section 80(4) of the Elections Act was unconstitutional since it provides that an election court can direct the IEBC to issue a certificate of election to a president.
In dismissing the suit, Justice Ong’undi based her decision on provisions of Article 163(3)(a) of the Constitution, which provides that “the Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to the election of the office of President arising under Article 140 (of the Constitution).”
“From the above it is clear that it is the Supreme Court which has the exclusive jurisdiction to deal with issues/disputes related to presidential election,” ruled Justice Ong’undi
The disputed section of the law, that the petitioners sought interpretation of, gives the Supreme Court the powers to declare the presidential election winner and also to direct the electoral commission to issue a certificate of the election to a presidential candidate upon recounting of the ballot papers cast.
It says that “an election court may by order direct the Commission to issue a certificate of election to a President, a member of Parliament or a member of a county assembly if upon recount of the ballots cast, the winner is apparent; and that winner is found not to have committed an election offence.”
According to Mr Osoro, an ally of President-elect William Ruto, the said statutory provision is unconstitutional, null and void as it expressly contravenes Article 138(10) of the Constitution and also offends the principle of independence of the IEBC.
“It is against this backdrop that I contend that Parliament overstepped on its mandate in clothing the Supreme Court (election court in presidential election dispute) with the power to direct IEBC to issue a particular candidate with the certificate of election,” said Mr Osoro.
The said section excludes the election of county governor from the class of offices that an election court can direct the Commission to issue a certificate of election upon recount and retallying.
“In essence, the presidential election results being hotly contested and of a higher political voltage than the other elective positions, the Supreme Court should be extremely cautious in assuming jurisdiction under Section 80(4) of the Elections Act,” said the MP.
In his view, the politician says there is a real threat of abrogation of rights under Article 38 of the Constitution if the losing candidate in a presidential election moves to the Supreme Court seeking to be declared as the president-elect by relying on the said section of the law.
“The Supreme Court sitting as an election court in presidential election disputes can only hold that the election results are valid or invalid and no more. The framers of the Constitution did not intend that Parliament would legislate on disputes relating to presidential elections,” said Mr Osoro.
He wanted the High Court to declare the statute, Section 80(4), unconstitutional ‘to the extent that it accords the Supreme Court the power to declare a winner in the presidential election’.
Reacting to the court’s decision to strike out the suit, the three voters said they will move to the Court of Appeal to challenge Justice Ong’undi decision.
They believe the High court has powers to interpret the said section of the law.
“Our case was a constitutional petition not an election petition, we were seeking the court’s interpretation of and whether section 80(4)(a) of the Election Act is inconsistent with the constitution unfortunately the judge has declined the petition and our application to have the same placed before the Chief Justice for directions even before hearing us,” said Mr Koome.
