No party hoping, high court rules


High Court has dismissed a petition by Council of Governors seeking to allow party hoping.

While delivering the judgement on behalf of Justice John Mativo, Justice Chacha Mwita ruled that the petition lacked merits and failed to demonstrate the challenged section of the constitution were unconstitutional.

“The petitioners failed to demonstrate that the challenged sections infringe any provisions of the law,” ruled Justice Mwita.

The judge said that the petitioners did not address themselves to the provision of section 14(1) of the Political Parties Act which provides that…. “A person should not be a member of more than one political party at the same time”.

In February 2017, high court had issued temporary orders restraining the Independent Electoral & Boundaries Commission (IEBC) from implementing party hoping laws pending hearing and determination of the petition filed by council of governors.

Council of Governors through lawyer Peter Wanyama moved to court seeking orders to overturn a law that bars politicians from defecting to another party after losing in the primaries.

COG sued the Attorney-General and the Independent Electoral and Boundaries claiming that the Election Laws Amendment Act 2017 which kicked off on January 30 contains a problematic unconstitutional section.

The governors further claimed that Section 28 of the Elections Act requires that a political party to submit its list of members to IEBC 120 days before polls, meaning a member cannot resign or join another party afterwards.

The county chiefs contended that Section 28 of the amended Elections Act limits the freedom of association and the liberty of making political choices by Kenyans as provided in the Constitution.

Their lawyer Wanyama said argued that denying members of a political party the right to freely move from one political party to another and still be eligible to contest in the general elections without any unreasonable restrictions limits the right to political participation and association.

The governors faulted sections of the elections law, arguing that its restriction to political freedoms is wholly disproportionate in an open and democratic society.

In January 2017 Parliament passed the Election Laws Amendment Act of 2017 which purports to give effect to Article 99 (1) (b) of the Constitution, to amend the Elections Act, 2011 and the

Mr Wanyama argued that, the Constitution provides for limitation of rights and fundamental freedoms only in reasonable and justifiable circumstances in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.