Dr Luis Franceschi is the Dean of Strathmore Law School
Posted Friday, July 12, 2013 | By Dr LUIS FRANCESCHI
Kethi is in trouble and so is Kaloki. I wouldn't want to be in their shoes.
Kethi has the votes but lacks a legal nod. Kaloki has the law on his side but lacks the votes.
The duo seems to have more problems than a math book and more drama than a screenplay.
Kethi has not been able to articulate her case consistently. As the drama unfolds more question marks emerge.
Kaloki, on the other hand, has been unable to gather the momentum needed conquer the seat.
Will they meet half way? Impossible.
Voter register
The case for Kaloki has no legal solution. It is only political. He has to convince the Makueni people that he is their man. He has to struggle to get the right number of votes.
Kethi's case has no political solution. It needs legal one. She has to convince the courts that she registered as a voter and did so legally.
Her registration case should not become a political game. Certainly, the matter is not simple.
The legal provisions relating to election dispute management are primarily contained in the Constitution, the Elections Act, the Independent Electoral and Boundaries Commission Act as well as the Political Parties Act.
According to Article 99 of the Constitution “a person is eligible for election as a member of Parliament if the person is registered as a voter.”
Kethi says she is a registered voter. The IEBC objects.
Even though the Constitution speaks of continuous voter registration, Art 5 of the Elections Act qualifies and regulates these registration periods, which according to the IEBC Kethi missed.
Article 88 of the Constitution places the task of settling “electoral disputes on the IEBC. This includes disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.”
Section 110 (6) of the Election Act provides that, subject to the provisions of the Criminal Procedure Code, the IEBC can designate any of its officers to conduct any prosecution for an offence under the Election Act and the Electoral Code of Conduct.
IEBC conflicting roles
Thus, the IEBC is tasked with the role of simultaneously acting as judge and party, even with prosecution powers.
The IEBC argues that their role is inquisitorial. Kethi argues that IEBC is the custodian of the register and has taken sides. The Bench will have the final say.
If the IEBC has accomplished the task of accusing Kethi of fraudulent registry and made a decision to block her from running we are witnessing role duplicity.
Duplicity of roles contradicts a key principle of justice: impartiality.
Impartiality demands that a judge recuse himself/herself where he/she has bias, prejudice, served as a lawyer in the matter of controversy, has been a material witness, is known to have an interest that could be substantially affected by the outcome of the proceeding or has personal knowledge of disputed facts.
Breach of law
If the IEBC fails the test of impartiality it would contradict article 50 of the Constitution which states:
“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”
Kethi is determined to prove that her disqualification as a candidate breached article 50. So far, she has the upper hand even though the process has stalled. The by-election has been postponed and her name provisionally included in the ballot papers.
But Kethi will need to go further and prove she was validly registered.
The Green Book
Voter registration was not IEBC’s strong point. The Supreme Court said:
“We note from the evidence that the said manual system, though it did serve as a vital fall-back position, has itself a major weakness which IEBC has a public duty to set right.
“The ultimate safeguard for the voter registration process, namely “the Green Book”, has data that is not backed-up, just in case of a fire, or other like calamity.
“We signal this as an urgent item of the agenda of the IEBC, and recommend appropriate redressive action.”
The Court also concluded that under the law, that the Principal Register of Voters is not a single document “but an amalgam of several parts prepared to cater for diverse groups of electors.”
Can this mayhem of confusing and inaccurate registration records help Kethi to survive? Perhaps.
Think Twice
In any case, if Kethi is not a legally registered voter, the situation could take an ugly turn leading to false representation, where fraudulent means and falsehood were used to obtain leadership at any cost.
We hope this is not the case.
Kethi should reflect: Is this battle right? Just? Fair? If the answer is yes, she should go ahead and fight. It is her choice.
If the answer is no, then she is still on time to shelve her political ambition for a while.
What matters is that neither Kethi nor Kaloki nor IEBC falls into one or more of Gandhi’s seven deadly sins: Wealth without work, Pleasure without conscience, Knowledge without character, Commerce without morality, Science without humanity, Worship without sacrifice and Politics without principles.
Dr Luis Franceschi, LLB, LL.M, LL.D is Dean of Strathmore Law School. He is a law lecturer and legal advisor to several national and international government commissions and programmes. Email:LFRANCESCHI@strathmore.edu>; Twitter: @lgfranceschi
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