The Director of Public Prosecution wants the High Court to determine whether special courts gazetted by the Chief Justice have jurisdiction to try offences under the Election Offences Act committed during party primaries.
Through a review application which is the first under the new laws, the DPP also wants the court to determine whether party primaries are governed by the Act.
In the application, senior assistant DPP Alexander Muteti also wants the court to determine whether party dispute resolution mechanism can be a substitute for the criminal justice system in addressing offences related to elections.
“During the hearing, the DPP shall crave for leave of the court to be heard considering the wider public interest involved and the ramifications of a decision declaring the Act inapplicable to the offences committed during party primaries,” he said.
The application arose after a magistrate’s court declined to have Changamwe MP Omar Mwinyi to take plea to two separate sets of charges against him which had been filed under the Act and the Penal Code.
Mombasa chief magistrate Evans Makori directed the prosecution to ponder on whether offences committed during party primaries fall under the Election Offences Act 2016.
He said if the prosecution finds the charges against the MP do not conform to the Act they ought to drop them. He directed the cases to be mentioned on May 8.
Mr Muteti is seeking the higher court’s intervention on whether the magistrate can decline to hear and determine the election offences case on the basis of the definition of the term ‘Election’ in accordance with the Act.
“The court ought to determine whether the magistrate was within the law to direct the DPP on how to exercise his prosecutorial mandate regarding the prosecution of election offences without infringing on the doctrine of separation of powers,” he said.
He further said there is a need for the court to determine whether Independent Electoral Boundaries Commission, by publishing six gazette notices in 2017 has declared in law ‘election period’ hence the Act applies to all offences committed during the poll period including party primaries.
Mr Muteti is also seeking interpretation on whether the magistrate’s directive DDP considers dropping charges under the Act was not against the spirit of the law and thus improper.