NATION Insight Report
Monday, February 4, 2002

This an an abridged version of an article on the Electoral Commission by Mr Justice William Mbaya first published in the Sunday Nation on June 6, 1999.

Now, if elections are marred by violence and bribery, they are not free and fair. They are sham. They are null and void. They are not elections. Logically, they are a nullity. They should be annulled by the Electoral Commission. But why has this not been the case?

The argument advanced for the delinquent stand by the Electoral Commission is that it is only an election court that is expressly empowered by law to nullify an election after hearing a petition filed by an aggrieved party. The Electoral Commission cannot on its own, it is argued, nullify an election.

To my own mind, this stand is erroneous. The perceived incapacity of the Commission to nullify a flawed, sham election is, to say the least, imaginary. Surely, the supremacy of the constitutional provision mandating the Commission to superintend free and fair elections must be taken to override the rest of the statutory electoral law provisions regarding election petition procedures.

The point here is that if the elections are not free ad fair, they are null and void and the Electoral Commission has the constitutional mandate to nullify them by using an implied residual power emanating from the Constitution to "promote free and fair elections."

It defeats logic that a Commission which is empowered to superintend free and fair elections – and when there is overwhelming, indeed all, evidence that an election was not free and fair, meaning no election at all in law – cannot annul such an election!

Implied powers in law are not an anathema. Even in the ordinary law of agency, an agent may possess implied authority where a particular action is not sanctioned expressly by his principle.

Thus an agent who is given express authority to to carry out a task may have additional, incidental authority to do some acts reasonably incidental and necessary to enable him carry out his authorised task.

By analogy, my argument is that, since the Electoral Commission is expressly mandated by the supreme law, the Constitution, to oversee free and fair election, the Commission should have and indeed has, the additional incidental power to nullify flawed elections. If an Electoral Commission cannot nullify a election which is sham, meaning there was no election, then how can the Commission justify its existence?

It is now time for the Commission to re-assert its independence.

Second, whenever an election loser files a petition and the Electoral Commission as a respondent is aware of serious irregularities, the Commission should concede forthwith so that the court can allow the petition.

Third, the Electoral Commission must prosecute anyone committing an offence related to elections. The power to prosecute is bestowed on the Commission by Section 34A of the National Assembly and Presidential Elections Act.

For offences like violence and bribery, which are also criminal, the Commission should publicly request the Commissioner of Police to arrest and prosecute the culprits. If the Commissioner of Police fails or neglects to prosecute, the Commission may itself undertake the prosecution.

During elections, the Commission is empowered to use all police officers assigned to it. It is no excuse for the Commission to say that it does not have a police force of its own.

Section 3(3) of the National Assembly and Presidential Elections Act reads: "Notwithstanding the provisions of the Police Act, a police officer assigned during the conduct of an election shall be deemed to be an election official for the purposes of this Act and subject to the direction and instruction of the Commission."

• Mr Justice Mbaya is an Electoral Commissioner. All the views expressed in this article are solely those of the author and not necessarily those of the Electoral Commission of Kenya.