Tuesday, December 2, 2008



December 1 2008

Electoral commissioners have invoked the Rule of Law. Arising from recommendations made by the Kriegler Commission, there is a plan underway to reconstitute the current ECK by amending Section 41 of the Constitution which would otherwise require the setting up of tribunals.

The intention and effect is to remove this ‘‘security of tenure’’ currently enjoyed by the Kivuitu team and in such a manner as to replace the ECK with an ‘‘interim electoral body’’ pending the review of the Constitution.

But the ECK has secured a temporary High Court order that stops the Executive, and by implication, Parliament, removing them from office without due process as laid down under the law.

Several fundamental issues come to the fore. One; should society agree to condemn ECK commissioners, and many of its employees as collectively guilty without due process? Isn’t that a violation of their basic human rights?

Two; can Parliament disobey the Constitution by changing it? Three; can the High Court stop Parliament amending the Constitution?

Judge Kriegler has explicitly exposed that ECK, as an institution, failed in the execution of its mandate in several important ways.

The failure to computerise the tallying and transmission of results after having acquired 210 laptops for the purpose is an excellent example.

It can be argued, therefore, that the Kivuitu team has a moral, if not legal, obligation to resign en masse.

But the concept of ‘‘collective guilt’’ is in direct violation of a basic human right; every person shall be presumed innocent until proved guilty.

In the case of the ECK, the Constitution expressly provides for the manner of their removal; via a tribunal.

If the Kivuitu team has not buckled under the moral burden so obviously laid on them by the chronicles in the Kriegler report, we as society could proceed to convert the moral burden into a legal one, but we must do so strictly under the strictures of the rule of law.

Under our Constitution, a person who claims that their basic human rights are under threat of violation has the right of access to court to stop the perpetrator before the violation actually occurs.

The ECK commissioners have, therefore. acted in accordance with their rights under the law. They have rejected the implied ‘‘collectively guilty’’ charge.

Parliament is under obligation to obey the law. But the intention of Parliament to amend Section 41 and remove the ‘‘security of tenure’’ enjoyed by the ECK commissioners is a serious legal issue because it is an acknowledgement that these constitutional constraints are ‘‘cumbersome’’.

The purpose of amending section 41, therefore, amounts to a deliberate intention to avoid, evade and disobey an express provision of the existing Constitution.

The issue that arises, therefore is; can Parliament in law disobey the Constitution by changing it?

The sovereign power of the people, through the Constitution, allocates certain specified powers to the institutions the Constitution creates.

Parliament is only one such institution and is not, therefore, supreme; it acquires the power to legislate by deliberate allocation under Section 30, and this power is not absolute.
If the constitutional protection provided to certain office-holders is part of the basic structure of our Constitution, then Parliament cannot disobey those provisions by changing them.

The constitutional protection is deemed to have been provided by the people, and therefore, security of tenure of all constitutional office-bearers cannot be removed by Parliament except as part of an overhaul of constitutional dispensation in which the people are involved.

The notion that Parliament has the supreme power to proceed on any statute or amendment to the Constitution without interference from the Judiciary is naïve.

But even worse is an expectation that the Speaker’s ‘ruling’ given on November 27 somehow ‘protects’ Parliament.

It has no effect whatsoever on the legal process initiated by ECK commissioners; indeed Parliament is not a party in the suit, but the critical question they have now raised is whether there are circumstances under which the High Court can stop Parliament changing the Constitution.

In a sense Mr Kivuitu has done us a favour because nothing is immune from the court’s scrutiny if it is in conflict with the Constitution.

The power to interpret the law is vested exclusively in the High Court by Section 123. The Speaker of the National Assembly cannot interpret the Constitution and his ‘‘ruling’’ has no effect or force of law outside the House.

In making his ruling in the House, the Speaker failed to appreciate the anticipatory nature of the petition before the High Court.

The High Court has the power, not just to strike out, but also to prevent legislation, privileges, immunities or powers claimed by Parliament which are in conflict with the Constitution.

Mr Ngugi is a Nairobi businessman and consultant on development issues.


Very well said Mr Ngugi! The moment we allow parliament or any other arm of government to allocate itself powers outside those that it ought to enjoy, the faster we plunge into anarchical abyss.

Submitted by obiero76
Posted December 02, 2008 05:43 AM

To hell with your constitution,the law is made by us and for us,we are not made for the law.It's only relevant up until it stops serving it's purpose.Where was the constitution when kivuitu and his team bungled the election sending the country to the Dogs?Spare us those parklands campus lecture please.

Submitted by Thiankolu
Posted December 01, 2008 08:53 PM

Congratulations Sir! You forgot a few things though. It was held in the Njoya case that Parliament cannot in the guise of amendment alter a fundamental aspect of the constitution. Security of tenure is one such aspect. We should not bend rules just because sentiment so demands. The Judgment is available online, and most parliamentarians must be aware of it. What is so hard in forming a tribunal if there is such a strong case against the Kivuitu team? Is someone fearing if they go to the tribunal they will reveal something we do not know?