The High Court has struck out two petitions filed by South Mugirango MP Silvasnus Osoro and three voters that were challenging the Supreme Court's power to declare a winner of a presidential election.
They were seeking an interpretation of the law on the powers conferred to the Independent Electoral and Boundaries Commission (IEBC) Chairman on declaration of presidential election results and whether Supreme Court can declare such a winner or order IEBC to declare a winner.
Justice Hedwig Ong'undi found that the High Court's Constitution and Human Rights Division has no authority to hear the case as filed by Osoro and voters; Ashford Koome Mbogo, Michael Ochieng Asola and Eric Githinji.
"I find that under Article 140 (2) of the constitution, the Supreme Court hears the presidential elections and gives a decision. It is not for this court to direct the Supreme Court on what to do or not do," Ong'undi said while striking out the petitions.
The petitioners wanted the High Court to declare that Section 80 (4) of the Elections Act is unconstitutional since it provides that an election court can direct the IEBC to issue a certificate of election to a president.
In dismissing the suit, Justice Ong'undi based his decision in the provision of Article 163(3)(a) which provides that "the supreme court shall have exclusive original jurisdiction to hear and determine disputes relating to the election to the office of president arising under Article 140."
"From the above, it is clear that it is the Supreme Court which has the exclusive jurisdiction to deal with issues/disputes related to the presidential election," Justice Ong'undi said.
The section of the law that the petitioners sought interpretation gives the Supreme Court the powers to declare the presidential election winner and to direct the electoral commission to issue a certificate of the election to a presidential candidate upon recounting of the ballot papers cast.
It says that "an election court may by order direct the Commission to issue a certificate of election to a President, a member of Parliament or a member of a county assembly if, upon recount of the ballots cast, the winner is apparent; and that winner is found not to have committed an election offence."
According to Osoro, an ally of President-elect William Ruto, the said statutory provision is unconstitutional, null and void as it expressly contravenes Article 138 (10) of the Constitution and offends the principle of independence of the IEBC.
"It is against this backdrop that I contend that Parliament overstepped on its mandate in clothing the Supreme Court (election court in presidential election dispute) with the power to direct IEBC to issue a particular candidate with the certificate of election," Osoro says.
The said section excludes the election of county governor from the class of offices that an election court can direct the Commission to issue a certificate of election upon recount and retallying.
"In essence, the presidential election results being hotly contested and of a higher political voltage than the other elective positions, the Supreme Court should be extremely cautious in assuming jurisdiction under Section 80(4) of the Elections Act," the MP says.
In his view, the politician says that there is a real threat of abrogation of rights under Article 38 of the Constitution if the losing candidate in a presidential election moves to the Supreme Court seeking to be declared as the president-elect by relying on the said section of the law.
"The Supreme Court sitting as an election court in presidential election disputes can only hold that the election results are valid or invalid and no more. The framers of the Constitution did not intend that Parliament would legislate on disputes relating to presidential elections," Osoro says.
Reacting to the court's decision to strike out the suit, the three voters said they will move to the Court of Appeal to challenge justice Ong'undi's decision.
"Our case was a constitutional petition, not an election petition. We were seeking the court's interpretation of and whether section 80(4)(a) of the Election Act is inconsistent with the constitution, but unfortunately, the judge has declined the petition and our application to have the same placed before the Chief Justice for directions even before hearing us," Koome said.
