The Council of Governors on Tuesday moved to court seeking to temporarily suspend a section of the election laws that tame party hopping.
The council sued the Attorney-General and the Independent Electoral and Boundaries claiming that the Election Laws Amendment Act 2017 which kicked off on January 30, contains a problematic unconstitutional section.
Through lawyer Peter Wanyama, the governors claimed that Section 28 of the Elections Act requires that a political party submits its list of members to IEBC 120 days before polls, meaning a member cannot resign or join another party afterwards.
County bosses argue that this law locks out those with genuine justifiable reasons from defecting after the deadline hence it is improper in a democratic society.
According to the council, attempts to put political parties affairs in order cannot be achieved by unreasonably locking out others in an unfair manner and that the 45 days window period as initially provided by the law was sufficient enough for picking and choosing those to run in the elections.
“By denying members of a political party the right to freely move from one political party to another and still be eligible to contest in the general elections without any unreasonable restrictions limits the right to political participation and association,” Mr Wanyama said.
The new elections laws were discussed and passed in Parliament between December last year and the start of January this year.
Section 28 of the Elections Act 2011 stipulated that a political party that nominates a person for any election shall submit to the IEBC its membership list at least 45 days before the date of the polls.
But Section 10 of the elections amendment Act 2017 has now replaced Section 28 of the Elections Act 2011.
It now gives those who want to move from one party to another at least 120 days to do so for a general election while 45 days in the case of a by-election.
“Being a member of a political party or not is an individual’s choice and cannot be limited, the problem is not party-hopping but the practice of party politics in Kenya,” Mr Wanyama said.
Governors therefore want court to determine constitutionality of Section 28 of Elections Act before IEBC starts to implement it in readiness for the August polls.
They also want the High Court to issue a temporary order suspending that law which limits party hopping pending the hearing and determination of the case.