- IEBC moved to the apex court after losing the case at both the High Court and the Court of Appeal.
- The commission argued that Chege breached the Code when she allegedly claimed that there was vote rigging in favour of the Jubilee Party during the 2017 elections.
Image: FILE
The Supreme Court has dismissed an appeal by the Independent Electoral and Boundaries Commission (IEBC) against nominated MP Sabina Chege on alleged breach of the Electoral Code.
IEBC moved to the apex court after losing the case at both the High Court and the Court of Appeal, where it had said Chege breached the Code when she allegedly claimed that there was vote rigging in favour of the Jubilee Party during the 2017 elections.
On Tuesday, a five-judge bench noted that according to the Elections Act, it is mandatory for political parties, candidates and members of the referendum committee who participate in an election or referendum under the Constitution to comply with the electoral Code.
In the documents submitted to court, Chege had however said she had not subscribed to the Code and she was not a candidate for the 2022 general election.
However, IEBC argued that at the time of the alleged insinuations in February 2022, Chege was a member of the Jubilee Party and was therefore bound by the Code.
The electoral body did not present any evidence to confirm that the party subscribed to the Electoral Code for the election period which was running from January 20, 2022, to the declaration of the results of August 9, general elections.
This was noted by the judges who also pointed out tha Jubilee was not a party in the cause before it.
"Neither could it glean from the record that the appellant ( IEBC) adduced proof that respondent (Chege) was either a member or official of the Jubilee Party," the court added.
"Due to the inconclusive nature of the evidence the Court held that the respondent cannot be found liable in the instant case. The Appeal, to the extent that the Respondent (Chege) is to be found liable, is hereby dismissed."
The judges included Deputy Chief Justice Philomena Mwilu, Justices Njoki Ndungu, Mohamed Ibrahim, Smokin Wanjala and William Ouko.
IEBC had also challenged the judgement of the Court of Appeal in finding that the Second Schedule to the Elections Act is unconstitutional.
This is because it empowered the body to conduct hearings, receive complaints and summon witnesses.
The court had ruled that the IEBC is not empowered to settle disputes relating to breaches of the Electoral Code of Conduct.
IEBC, however, argued that the Second Schedule to the Elections Act and Code of Conduct are derived from various provisions of the Constitution and that it has the responsibility to put in place appropriate structures and mechanisms to eliminate electoral malpractices.
This, it further argued, included the powers to summon persons alleged to have breached the Electoral Code of Conduct.
Chege, who had in 2022, been summoned by the Electoral Code of Conduct Enforcement Committee, however, opposed the appeal, saying that IEBC was not a judicial body as provided for under the Constitution.
She also submitted that the Second Schedule was unconstitutional in as far as it conferred powers to the IEBC Committee to investigate and determine a fine or punishment.
Chege further filed a cross-petition arguing that the Commission has only powers to develop an Electoral Code of Conduct but not to enforce it.
In determining the case, the Supreme Court noted that the Constitution must be interpreted purposively and as an integrated whole, each clause supporting the other and not destroying it.
"The Court, therefore, has determined that the Electoral Code of Conduct is designed to enable the IEBC to perform its constitutional and statutory mandate, and the appellant is empowered to enforce the Code of Conduct through the issuance of summons and conducting trial proceedings," the court ruled.
It disagreed with the findings of the previous courts on the aforesaid.
"The Supreme Court, therefore, cannot agree with the Court of Appeal or the High Court, that IEBC acted in excess of jurisdiction, by issuing summons to and conducting hearings, pursuant to which it meted sanctions against the respondent (Chege).
Further, I'm it's ruling, the court struck out the cross-petition filed by Chege and ordered a refund of the Commission's money deposited as security.
"We hereby direct that the sum of Sh6,000 deposited as security for costs upon lodging this appeal, be refunded to the Appellant (IEBC)," the court ordered.