The secret behind unconstitutional appointment of Nkatha to a nonexistent position

KENYA NEWS: 

By Albert Nyakundi Amenya

First, the position of Deputy National Returning Officer does not exist under the Constitution of Kenya and/or any electoral laws.

Article 88 (4) of the Constitution, the first constitutional provision on which the appointment is purportedly made, only spells the functions of the IEBC (conducting elections, voter registration etc). It has nothing to do with appointment of IEBC Commissioners or staff.

Article 138 (10) of the Constitution, the second constitutional provision on which the appointment is purportedly made, specifically says that “the chairperson of the Independent Electoral and Boundaries Commission” shall declare the results of the presidential election within 7 days.

It has no provision for delegation of this task to any other Commissioner or officer of the IEBC.

While on the point, there is a principle in constitutional/administrative law called delegatus non potest delegare or something like that.

In ordinary parlance, it means one on whom a constitutional or statutory function is conferred cannot delegate that function unless the constitution or statute expressly permits him to delegate it.

Section 11 of the Independent Electoral and Boundaries Commission Act, 2011, the first statutory provision on which the appointment is purportedly done, is regulates the appointment of “employees” of the IEBC.

Ms Consolata N. B. Maina is not an employee of the IEBC. She is a member/commissioner of the IEBC. Accordingly, section 11 of the Independent Electoral and Boundaries Commission Act, 2011 does not and cannot conceivably provide any legal foundation for the purported appointment.

Section 38 of the Elections Act, 2011, the second statutory provision on which the appointment is purportedly done, requires returning officers appointed under sections 16, 17 and 19 of the same Act to hold an election in accordance with a gazette notice published pursuant to section 14.

Sections 16, 17 and 19 of the Elections Act, 2011 refer to returning officers for parliamentary, gubernatorial and county assembly elections respectively.

There is no parliamentary, gubernatorial or county assembly election scheduled for 26th October 2017. Accordingly, section 38 of the Elections Act does not and cannot conceivably provide any legal foundation for the purported appointment.

Section 39 (1D) of the Elections Act, 2011 the last statutory provision on which the appointment is purportedly made, restates the provisions of article 138 (10) of the Constitution.

In other words, it reiterates that the “chairperson” of the IEBC shall declare the results of presidential elections. Accordingly, section 39 (1D) of the Elections Act, 2011 does not and cannot conceivably provide any legal justification for the purported appointment.

The gazette notice also cites subsidiary legislation as a justification for the purported appointment. There is no point in delving into subsidiary legislation.

It is a basic/elementary principle of law, known to every first-year law student, that subsidiary legislation cannot permit that which the parent statute does not permit.

The legal maxim for any such subsidiary legislation is called ultra vires. Now, in constitutional/administrative law, anything that is ultra vires is also invalid, null and void.

Lastly, section 6 (1) of the Independent Electoral and Boundaries Commission Act, 2011 states that “The chairperson of the Commission shall be a person who is qualified to hold the office of judge of the Supreme Court under the Constitution.”

To the best of my knowledge, Consolata N. B. Maina is not qualified to be a Judge of the Supreme Court under the Constitution. This means (inter alia) she cannot assume the functions of the IEBC Chairperson.

Even assuming, which is not the case, that the purported appointment had a legal foundation.

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