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Lawyers protest new law to lock out governors, senators, MPs from accessing Supreme Court

Lawyer Tom Ojienda

NAIROBI: Several governors and MPs could face by-elections soon after the August polls if new laws barring them from accessing the Supreme Court for reprieve are passed.

The proposed amendments to election laws currently before the National Assembly provide that the Court of Appeal’s decision on election petitions will be final and that the Supreme Court will handle only the presidential election dispute.

This would be unlike what happened in the 2013 elections, when the Supreme Court saved many governors and MPs from facing the electorate in by-elections after their victories were nullified by the Court of Appeal.

Among the beneficiaries of Supreme Court rulings were governors Evans Kidero (Nairobi), Peter Munya (Meru), Hassan Joho (Mombasa), Issa Timamy (Lamu) and Okoth Obado (Migori). Only Siaya Governor Cornel Rasanga opted for a by-election instead of going to the Supreme Court.

Bungoma Senator Moses Wetang’ula also opted for a by-election after the Court of Appeal nullified his election while Othaya MP Mary Wambui was reinstated by the Supreme Court after her election was nullified by the Appellate court.

The proposed changes have caused jitters among lawyers, with Tom Ojienda giving an advisory opinion to speakers Justin Muturi and Ekwee Ethuro to stop the passage of the Miscellaneous Election (Amendment) Bill 2017.

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“The Bill, if passed into law, will not only subject some elected leaders to unfair by-elections but also encourage corruption and impunity in the Judiciary where judges will take advantage of their final authority to be enticed to deliver judgement in favour of a party,” said Prof Ojienda.

The Bill provides that an appeal from the High Court in election petitions concerning MPs, senators and governors only lies at the Court of Appeal and that the Appellate decision shall be final.

Ojienda said limiting the court’s jurisdiction and restricting contested elections to only one appeal would undermine the democracy the country had earned.

He added that the amendment, which is in the Second Reading stage at the National Assembly, would easily be declared unconstitutional if challenged in court.

Senior counsel Paul Muite blamed the Supreme Court for creating the problem.

“The problem emanated from wrong decisions by the Supreme Court when they expanded their jurisdictions beyond what the Constitution says,” he said.

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