Supreme Court No Longer Able To Annul Presidential Election On Minor Inconsistencies


The Election Laws (Amendment) Act 2017 bill has become law despite President Uhuru Kenyatta not assenting to it.

The bill had been presented to the Kenyan leader to sign which he failed to do. He, however, also failed to reject it, allowing for it to become law after 14 days.

Kenyan Constitution dictates that if the President fails to assent to a Bill after 14 days or revert it to Parliament with recommended suggestions, it becomes law.

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The bill was hence gazetted on Thursday, November 2, three weeks after the Senate approved the amendments passed by the National Assembly.

It states: “The Bill may be cited as the Election Laws (Amendment) Act 2017 and shall come into force upon publication of the Gazette.”

With this bill, the Supreme Court has been stripped of the power to annul an election of the President based on minor inconsistencies.

“A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that (a) the election was conducted in accordance with the principles laid down in the Constitution and in that written law, and (b) the non-compliance did not substantially affect the result of the election,” reads the bill.



The Bill also redefines the definition of the chairperson of the electoral commission, giving room for election results to be announced even in the absence of a Chair.

“A chairperson of the Independent Electoral and Boundaries Commission means the chairperson of the commission appointed in accordance with article 250 (2) of the constitution or the vice chairperson or a member of the commission while discharging the functions of the chairperson,” states the Bill.

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Jubilee legislators who overwhelmingly backed the amendments said the Bill is meant to seal legal loopholes that led to the nullification of President Kenyatta’s August 8 victory.

Nasa legislators said they will challenge it in court once it is passed.

Senators Moses Kajwang (Homa Bay), Mutula Kilonzo Jr (Makueni) and former Kakamega Senator Boni Khalwale said the case will be hinged on the fact that the procedure to it becoming law was unconstitutional. They said the process of both Houses forming two separate Select Committees to scrutinize the bills contradicting each other is unlawful.

Election Laws (Amendment) Act 2017 will be applicable to future elections.