Threats of shutting down media houses or entities for announcing figures different from the Independent Electoral and Boundaries Commission’s in Tuesday’s election results are premature, the High Court ruled on Monday.
Justice George Odunga said that such threats should be effected only if they are factual based hence declared the threats premature.
The judge issued the judgment in a case in which Africog, together with its director Gladwell Otieno, sued two Cabinet secretaries and the Communications Authority’s director-general while challenging threats of shutting down any media house or entity which announces unofficial poll results.
The threats had been issued by Interior CS Fred Matiang’i, his counterpart for Information, Mr Joe Mucheru and Mr Francis Wangusi (CA).
According to the judge, their remarks were merely speculative and that such should only be effected if what is aimed at being prevented is proportionate.
“It is, therefore, my view that a decision to shut down systems of any entity purporting to announce the results of the August 8 polls if they are not the ones released by the IEBC would be premature in light of provisions of Article 24 of the Constitution, which bars limitation of any right,” said Justice Odunga.
The judge, however, dismissed the case saying that the right to information was not violated because what was being sought was an opinion.
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On the issue of chasing away those milling around a distance of 400 metres from polling stations after voting, he said the law is clear on that.
Justice Odunga agreed with principal judge Richard Mwongo’s decision on the issue that there is a legal basis for the directive to be put in place by the IEBC, but pointed out that police have a duty to enforce law and order.
He also said that only presiding officers have the mandate to determine what poses a threat in a polling station and call for action by security agencies whenever required.
“With respect to the general power of the police, the mere fact that the regulations talk about the 400m radius does not mean that their powers to maintain law and order is suspended within the vicinity of the polling station,” said Justice Odunga.
He added: “In my view, where there is an imminent threat to peace, the police are under a constitutional duty to ensure law and order is maintained and to take appropriate action no matter the distance from the polling stations.”
The judge also faulted the IEBC for declining to give the information as requested by Africog, which had sought clarification on the two issues.
The judge said IEBC should have responded to the request even though Africog had issued them a 24-hour ultimatum.
The lobby had accused the sued parties of issuing directives concerning the management and conduct of the elections that were arbitrary as well as unlawful.