President’s move on Bill ties Speaker’s hands on elections

No by-elections can be held until the controversial Statute Law (Miscellaneous) Amendment Bill 2012, which President Kibaki declined to assent to this week, is enacted.

House Speaker Kenneth Marende told Parliament on Thursday that the Bill had proposed changes to the Elections Act 2011, restoring powers to declare seats vacant and to issue writs to the Independent Electoral and Boundaries Commission in the Speaker.

“There is no statutory law underpinning a decision where I can stand on to declare the seats vacant,” Mr Marende said, adding that he had lost the powers when the National Assembly and Presidential Elections Act was repealed and replaced by the Elections Act 2011.

This means that voters in Kangema, Kajiado North, and Ndhiwa constituencies whose MPs — Mr John Michuki, Prof George Saitoti, and Mr Orwa Ojode respectively — died this year will stay longer without representation.

“The declaration of the seats for Kangema, Kajiado North, and Ndhiwa as vacant will take a little while.

‘‘The enactment of the Elections Act was done without provisions that will guide holding of by-elections,” he said.

It also means that seats of about 100 MPs who have switched party allegiance cannot be declared vacant even if court’s find that they need to seek a fresh mandate from the electorate.

Mr Marende said that he had no power in law to declare the seats vacant because drafters of the Elections Act 2011 omitted provisions that could allow by-elections.

Under the National Assembly and Presidential Elections Act, the speaker had powers to declare seats vacant and issue writs to the Independent Electoral and Boundaries Commission (IEBC) to conduct by-elections in the event of death of a member or defection.

Mr Kibaki refused to sign the Bill into law because the matter of academic qualifications for candidates seeking elective seats and the fate of party hoppers were being arbitrated by courts.

Civil society groups had moved to court seeking a declaration that amendments to the Elections and Political Parties Acts that allowed presidential election losers to be nominated into Parliament, and party hopping by MPs, were unconstitutional.