Kenya's electoral commission moved to court on Monday seeking to block the government's decision to disband the body with its entire 21 commissioners.
The ECK chairman Samuel Kivuitu (ECK) and 21 commissioners want the court to issue orders to restrain the government from commencing any executive or legislative action to disband the ECK and send home its commissioners.
The commissioners said that neither government nor parliament has powers under Section 47 of the constitution to amend Section 41 of the Constitution to allow it disband ECK.
Major reforms at the ECK was a key pillar of the report which was handed over to the government in September this year by a team of inquiry set up to probe the country's disputed December, 2007.
The suit by the commissioners comes after the commission led by South African judge Johann Kriegler, which investigated last year's disputed presidential election, made the recommendation that ECK be radically reformed and replaced with a new body composed of a lean policy making board.
Kriegler who chaired the eight-member commission accused the electoral body of failing to implement previous recommendations especially the computerization of voter records and other data.
Kriegler was concerned that pens and paper were used to record and conduct the elections in numerous polling stations, which had almost doubled in 2007 from the previous poll, signaling a high voter turnout.
The probe team said the electoral crisis was due to systemic dysfunction of the entire electoral system and the ECK should be overhauled or replaced with a new body.
But the ECK commissioners said there is a proper procedure to be followed which is provided for in Section 41 of the Constitution should the ECK be disbanded and its commissioners removed.
The ECK through their lawyer Kibe Mungai said the commissioners said the scheme to remove them from office is a recipe for a constitutional crisis.
Section 41 of the constitution says that if any question of inability is raised in relation to a commissioner or misconduct is alleged then the matter is to be referred to a tribunal.
The section also says that for an ECK commissioner to be removed from office then the tribunal has to give recommendations after hearing the allegations against the particular commissioner.
If the scheme to disband ECK materializes then it would mean that parliament can use the power of amendment under Section 47 of the constitution as though it is analogous to the verdict of the tribunal envisaged under section 41 of the constitution, said the commissioners.
It said the current body lacks the necessary independence and functional capacity to discharge its constitutional mandate because of weaknesses in its manner of appointment, composition and management system.
The probe team also recommended that the country should adopt anew voter registration system to restore electoral integrity in the country.
Source:Xinhua
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