The electoral process due to its very nature, is a contest and is thus bound to be riddled with disputes. The credibility of the electoral process and determination of how free and fair the electoral process has been, is an issue of great public concern.
There are 2 categories of electoral disputes in Kenya: -
- Disputes before declaration of election results
- Disputes after declaration of election results
Disputes before declaration of results
Disputes before declaration of election results are within the mandate and scope of the IEBC by dint of Article 88(4)(e) of the constitution of Kenya 2010 which states as follows;.
(4) the commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for
a)……………
b)…………
c)…………
d)…………
- e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;
Such disputes are to be resolved within (10) days of the lodging of the dispute/complaint with the Commission.
Where a dispute relates to a prospective nomination or election, the dispute should be determined before the date of the nomination or election whichever is applicable.
Section 109 of Elections Act mandates the body i.e IEBC, with powers to make Regulations subject to approval by National Assembly at least 4 months preceding a general election.
Disputes after declaration of results
These are dispute that arise after election results have been declared and a winner announced by the commission. Such disputes are to be determined by courts of competent jurisdiction.
The Elections Act, 2011 regulates Elections disputes in Kenya.
The court’s Jurisdiction on Election disputes
- A petition challenging the validity of election of Member of a County Assembly is determined by a gazetted Resident Magistrate Court designated by Chief Justice.
- A petition challenging election of Governor is to be determined by a gazetted High Court Judge.
- A Petition challenging election of Member of Parliament National assembly (MP) is to be determined by a gazetted High Court Judge.
- A petition challenging a Member of Parliament National assembly (Senate) is to be determined by a gazetted High Court Judge.
- A petition challenging the election of a President is to be determined by the Supreme Court.
Security of costs
It’s important to note that a person who presents a petition i.e a petitioner must deposit security of costs within 10 days after presentation of a petition. This is provided under Section 78 of The Election Act which states as follows;
78 (1) A petitioner shall deposit security for the payment of costs that may become payable by the petitioner not more than ten days after the presentation of a petition under this Part
- Presidential Petition 1,000,000.00
- MP or Governor Kshs 500,000.00
- C.A Kshs 100,000.00
An order to dismiss a petition may issue if a petitioner fails to comply with security of costs.
Procedure of the court after receipt of an election petition
Section 79 of The Election Act provides for procedure of an election court upon receipt of an election petition.
An election court may upon perusal of a petition, reject a petition summarily if it does not disclose sufficient ground or fix the same for trial.
Powers of an election court.
These are provided for under Section 80 of the Election Act .
An election Court is vested with powers to;
- summon and swear in witnesses;
- compel attendance of any person; and
- decide all matters before it without undue regard to technicalities.
An election Court may order the Commission, IEBC, to issue a Certificate of Election to any elected person if
- If upon recount of the ballots casts the winner is apparent; and
- That winner is found not to have committed an election offence.
Filing and service of election petitions
Section 77 Of The Election Act provides that all other petitions challenging election results except that of a president must be lodged within 28 days after declaration of the results by IEBC.
A petition challenging election results of a president should be filed within 7days after date of declaration of results.
Service may be effected directly to the respondent or advertised in a newspaper of national circulation.
Time frames for election petitions
Election petitions due to their nature have timelines within which they should be resolved: -
- President - 14 days
- P – Senate - 6 Months
National Assembly
- Governor - 6 Months
- C.A - 6 Months
Article 135 of the Constitution and Section 85 of the Election Act provides that elections should be determined within such time frames to safeguard the integrity of elections among other reasons e.g. – Run off elections.
Appeals on election petitions
Section 85 (a) (1) provides for appeals to the Court of Appeal on election petitions challenging the validity of elections of a member of parliament, National Assembly, Senate and Governor from the High Court on matters of LAW ONLY.
Such appeals should be lodged within 30 days from the date of the decision of the High Court.
Section 85 (a) (2) provides that such an appeal to the Court of Appeal shall ACT AS AN AUTOMATIC STAY
Lacuna in law on appeals emanating from a petition challenging the election of a Member of the County Assembly
The Election Act is very silent on the issue of an election appeal in a petition challenging the election of a member of county assembly to the Court of Appeal. It seems like the drafters of the Act did not anticipate a scenario where a petition challenging the validity of the election of an MCA would be litigated up to the Court of Appeal.
Guiding principle in determining election petitions
In resolving election petitions, courts are guided by Guiding Principles which include but not limited to the following;
- Which party bears the burden of proof in an Election Petition.
Section 107 of Evidence Act demonstrates that the burden of proving allegation of non-compliance with the constitution and Election Laws vests with the petitioner.
Any, allegation of non-compliance, electoral malpractice and misconduct that may invalidate election result vests with the person alleging.
The burden of proof in election petitions is one above that required in Civil suits i.e. preponderance of probability but below the criminal standard i.e. beyond reasonable doubt.
The burden then shifts to the respondent after a petitioner has discharged such duties.
In RAILA AMOLLO ODINGA & ANOTHR –VS- IEBC & 2 OTHERS. PRESIDENTIAL PETITION NO. 1 of 2017Eklr the court stated that;
…..this emerges from a long standing common law approach in respect of alleged irregularity in the acts of public bodies, omnia praesumuntur rite et solemniter esse acta, all acts are presumed to be done rightly and regularly. So the Petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the Laws”
The court in the case of MOSES WANJALA LUKOYE –VS- BENARD ALFRED WEKESA SAMBU – BUNGOMA ELECTION PETITION NO. 2 OF 2013 followed the above Supreme Court decision when it held as follows;-
The evidential burden initially rests upon the party bearing the legal burden, but as the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence. Of the essence is that the evidential burden is the obligation of the Respondent once it has been properly created by the evidence tendered, and failure to discharge the evidential burden disadvantages the Respondent with the result that he fail and the Petitioner succeed in this petition, he ought to satisfy the onus of proof required.
- Did the myriads of irregularities if any, affect the outcome of the elections.
The Supreme Court of Kenya in Presidential Election Petition 1 Of 2017 RAILA AMOLLO ODINGA & ANOR =VS= IEBC & 2 OTHERS pronounced itself on Section 83 of the Elections Act when it held as follows:-
“ .......... a petitioner who is able to prove that the conduct of the election in question substantially violated the principles laid down in our Constitution as well as other written law on elections, will on that ground alone void an election. He will also be able to void an election if he is able to prove that although the election was conducted substantially with the principles laid down in the Constitution as well as other written law on elections, it was fraught with irregularities or illegalities that affected the result of the election”.
The Supreme court in the above case went further to state as follows:-
“.....we must re-emphasize the fact that not every irregularity, not every infraction of the law is enough to nullify an election. Were it to be so, there would hardly be any election in this country, if not the world, that would withstand judicial scrutiny. The correct approach therefore, is for a court of law to not only determine whether the election was characterized by irregularities, but whether, those irregularities were of such a nature or such a magnitude, as to have either affected the result of the election or to have so negatively impacted the integrity of the election, that no reasonable tribunal would uphold it .....”
The conduct of elections is governed by Article 81 and 86 of the Constitution and the Elections Act plus Rules and Regulations thereunder which demand that the electoral system should entail free and fair elections which are transparent and administered by an independent body in an impartial, neutral, efficient, accurate and accountable manner.
The duty of an election court is to determine if the elections had been conducted substantially in accordance with the principles laid in the Constitution and the elections laws and whether the non-compliance as contended by a Petitioner substantially or materially affected the results of the elections.
It is imperative to note that, as well as it is a matter of public knowledge and notoriety that elections’ the world over are never perfect due to the inherent fallibility of human beings who are prone to err. Indeed Section 83 of the Elections Act No. 24 of 2011 seems to have taken into account the circumstances aforesaid and provided some measure of allowance as follows: -
Section 83:
“No election shall be declared to be void by reasons of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the constitution and in that written law or that the non-compliance did not affect the result of the election.”
affected the result of the election or to have so negatively impacted the integrity of the election, that no reasonable tribunal would uphold it .....”.
For instance the court in deciding a petition challenging the election of Member of National Assembly to the Senate Machakos County in KALLA JACKSON MUSYOKA V IEBC & ANOR {2018}eKLR Examples of irregularities that petitioner raised include:-
- Forms not stamped with IEBC stamp or by agents
- A number of polling stations did not have IEBC stamps on the forms 38As hence the results could not be authenticated.
- A number of forms 38A’s were not witnessed by any agents and in some reasons are not given.
- A number of f0rm 38As were signed by two or more agents from other political parties.
- A number of form 38As were not signed by Wiper Agents.
- A number of polling stations had agents from other parties without candidates signing the said forms.
- The 1st Respondent failed to accurately tabulate and collate the results.
- A number of forms 38Bs lacked handing over notes and failed to show how many form 38As were received.
- The entries in form 38As did not match with the ones in form 38B.
- Machakos County Public officers were enlisted as the 1st Respondent’s employees for purposes of conducting the said election. etc
The court in rendering its decision relied on The Elections (General) Regulations 79(6) and (7) provides as follows:-
“The refusal or failure of a candidate or an agent to sign a declaration form under sub-regulation (4) or to record the reasons for their refusal to sign as required and this regulations shall not by itself invalidate the results announced under sub-regulation (2)(a):-
The absence of a candidate or agent at the signing of a declaration form or the announcement of results under sub-regulations (2) shall not by itself invalidate the results announced
It therefore goes without saying that not all irregularities affect the outcome of an election and for any election results to be invalidated the person seeking that should and must prove to the required standard that those irregularities affected the outcome of the elections in questions.
The results of an election as declared should and must demonstrate the will of the people.
IEBC as an election body is tasked with the mandate of conduction of elections in Kenya and in doing so it must ensure that the process is compliant with the Constitution of Kenya and all the Election laws. The process to be compliant with the law should be: -
- Free and fair
- By way of secret ballot
- Free from any forms of violence and intimidation
- Transparent
- Impartial, neutral, efficient, accurate and accountable.
Costs
The issues of costs is provided for under Section 84 of the Elections Act No. 24 of 2011 which provides as follows: -
An election court shall award the costs of and incidental to a petition and such costs shall follow the cause.
Conclusion
The election dispute resolution is very wide and this article is not exhaustive, however it is a fact that election resolution dispute is tedious, costly and time consuming such that political scores should not be used as an excuse to challenge an election unless there are genuine concerns as to the validity of an election.
Leave A Comments