168 5.19 Present status of the Law – sections 39 and 83 of the Elections Act and Regulations 83(2) and 87(2) of the Elections (General) Regulations 5.19.1 With regard to section 39(1C) and the impugned amendment to section 83 of the Elections Act, independent of any legislative reform from Parliament and these provisions having been declared unconstitutional by the Court, they are inapplicable and void. Barring the enactment of other provisions in their place, the provisions that preceded the annulled ones cannot be said to have been automatically reinstated, as Parliament is the sole body with legislative authority. Nonetheless, the binding decisions of the Supreme Court in the presidential election petitions it has determined form a sound reference point on how the provisions are to be interpreted and applied. 5.19.2 As for Regulations 83(2) and 87(2) of the Elections (General) Regulations, shortly after the provisions were declared unconstitutional, the IEBC issued fresh Regulations, the Elections (General) (Amendment) Regulations, 2017, which in the reasoning of the Court of Appeal, were meant to ‘render impotent and circumvent the declaration by the High Court of [their] inconsistency with the Constitution.’ As the issue was not squarely before it, the Court of Appeal could not proceed to declare the amended Regulations as being inconsistent with the Constitution. 5.19.3 However, despite the Court of Appeal’s remarks, the Elections (General) (Amendment) Regulations, 2017 have not been challenged and declared unconstitutional. Neither has the IEBC, in consideration of the stinging rebuke by the Court of Appeal in the Maina Kiai appeal case, revoked, amended or issued fresh Regulations in their place. 5.20 Judgment and Remedies 5.20.1 The Supreme Court must determine a presidential election petition within 14 days of the petition being filed, and may reserve its reasons to a date not later than 21 days from the determination (Rule 23, Supreme Court (Presidential Election Petition) Rules 2017). 5.20.2 The Court may issue the following orders after hearing the presidential election petition: i. Dismiss the petition; ii. Invalidate the declaration made by the Commission; iii. Declare the results of the president-elect to be valid or invalid; iv. Issue orders as to costs; and v. Issue any other orders it may deem appropriate. (Rule 26 of the Supreme Court (Presidential Election Petition) Rules 2017) Editorial Note: While section 84 of the Elections Act applies to all election courts, the Supreme Court has not in practice awarded costs in election petitions. Given that section 84 is worded in mandatory terms, it is not clear whether section 84 of the Elections Act applies to petitions before the Supreme Court and if so, whether the Supreme Court has the discretion in law to not award costs. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION