Activist Okiya Omtatah has sued the State while challenging the recent amendments to the election laws as effected by legislators affiliated to the Jubilee Party.
Although the Election Laws (Amendment) Bill, 2017 will not affect the just concluded repeat presidential polls, Mr Omtatah claims that the impugned laws are likely going to be relied upon in the repeat elections whose results were being transmitted and tallied when he moved to court.
One of the effects of the changes made in that law is that it enables the Independent Electoral and Boundaries Commission (IEBC) to announce the results of the presidential election in the absence of the chairman.
Mr Omtatah wants various sections of the disputed law temporarily suspended and that the Attorney General be barred from having it gazetted.
“Pending the hearing and determination of this case, the court be pleased to issue a temporary order of injunction restraining the AG, its agents, servants or any person claiming to act under his authority from proceeding to gazette the Elections Laws (Amendment) bill 2017,” he said.
The disputed bill came into law on October 27 which was the 14th day after being received by the President to ascent it and is now bound to be gazetted any time so as to come into force.
According to Mr Omtatah, the changes made to the law are unlawful since it introduces people who do not have the same qualifications as that of the chairperson of the electoral agency to perform his/her duties.
He also argued that lowering quorum to three in transacting the Independent Electoral and Boundaries Commission’s business is unreasonable as it would make it possible to have two factions.
He alleged that the changes are illegal since they undermine electronic voting technologies hence makes it impossible to eliminate corrupt practices in elections.
He further alleges the amendments ties the hands of the court from determining election disputes on merit.
Other changes effected in the disputed law include: if there is a discrepancy between the manual and electronically transmitted results, the manual shall prevail.
The new law also stipulates that a failure to transmit the results electronically shall not be used to invalidate the result.
The commission will also be required to announce results only when it has all the Form 34 Bs from all 290 constituencies, diaspora and prisons.
President Kenyatta has been silent about the said bill while legislators affiliated to the National Super Alliance boycotted the House after losing a vote to fast track it.
MPs from Jubilee approved formation of a nine member special committee which scrutinised the changes made to that law under the leadership of Baringo North MP William Cheptumo.
Other members were Gladys Shollei (Uasin Gishu, Woman Rep), Waihenya Ndirangu (Roysambu), Ali Wario (Bura), Jennifer Shamalla (Nominated), Adan Haji Yusuf (Mandera West), George Murugara (Tharaka), Stanley Muthama (Lamu West) and Alice Wahome (Kandara).
Mr Omtatah wants sections 2, 3, 4,5,6,8,9,10 and 12 of the law quashed.