The High Court has declared the Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023 unconstitutional, invalid, null and void.
In the case, OKIYA OMTATAH OKOITI had sued the Attorney General, the Speaker of the Senate, The Selection Panel for the recruitment of IEBC Commissioners and National Assembly.
According to Senator Okiya Omtatah, the Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023 (IEBC (Amendment) Act) was enacted by the Senate in violation of Article 10 and 118 of the Constitution.
He thus filed the instant Petition seeking to have the Act declared unconstitutional.
Omtatah sought before the Court a declaration that the Speaker of the Senate ought to have, but failed to reject the purported withdrawal of the Report since it was already the property of the House.
He also asked Court to find that by assenting to the Bill as passed, H. E. the President of Kenya, failed in his obligations under Article 115(1) & (2) of the Constitution to refer the Bill back to Parliament for reconsideration by Parliament after satisfying himself that the Independent Electoral and Boundaries Commission (Amendment) Bill 2022 (National Assembly Bills No. 49 of 2022) was not enacted in accordance with the Constitution.
In his Judgement today, Justice Lawrence Mugambi said Article 94 (1) must be read together with Article 118 (1) (b) and also Article 10 (2) (a) of the Constitution.
It was the Judge’s findings that the Parliament cannot be allowed to circumvent or take public participation lightly.
“Apart from representative democracy, our constitution retains participatory democracy where views of the people must be taken into account when decisions are being made in matters affecting them including the passing of legislation.” ruled Justice Mugambi.
The Judge said that the fact that the Bill could have undergone public participation in the National Assembly cannot absolve the Senate, which is constitutionally independent from National Assembly, from appraising itself of the issues of concern to the people as far as this legislation it intended to pass is concerned.
Further, it was the Judge’s findings that conducting public participation and discarding the report without deliberating on the same shows that no appropriate or any consideration was given to the public views by the Senate.
“In the circumstances, I find that the processing of the Bill in the Senate violated Articles 118 (1) (b) and 10(2) (a) of the 1. Constitution hence the ensuing Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023 is unconstitutional null and void.” Concluded the Judge.
