The 2nd day of September, 2017 will go down in history as a major turning point in the judicial discourse in Kenya. This is because the Supreme Court, contrary to expectations, pronounced itself overturning President Uhuru Kenyatta victory in the 8th August 2017 general elections. According to the majority decision, the Electoral management body, Independent Electoral and boundaries commission (IEBC) did not abide by the law and election regulations while conducting the presidential elections This was a first in Africa and perhaps shocking that the CJ Maraga shepherded team demanded fidelity to the rule of law, transparency, accountability, impartiality from an African electoral management body, a world where electoral fraud, violence and mismanagement flourishes with no consequences. The Raila Odinga 2017 landmark case however invoked article 138(9) of the Constitution of Kenya and subsequently raised questions while exposing a number of lacunas in the electoral system. It also opened the flood gates on electoral petitions on the other electoral seats. The courts are therefore dealing with over 70 petitions in addition to another presidential petition at present. This article therefore contends with the question of elections petitions and whether the courts have all the answers needed
When to litigate?
While Article 22 of the constitution of Kenya 2010 adopted a liberal position, taking away the locus standi “Place of standing” requirement for a litigant, instituting a court process however should still be done as a last resort. Granted, a number of reforms have taken place in the judiciary and today unlike the past, justice is expeditious, proportionate, and affordable yet the character of litigation as adversarial is still humongous. Litigants do not only have to take care of the strict timelines but the cause of action as well as the cost and the idea of evidence are upon them. A number of issues also come to play specific and unique to electoral disputes. Firstly is always the question of public interest. Public interest is an issue that judicial officers are always asked to consider. It revolves around cost of elections, the fear of violence and a constituency being ungovernable. A litigant involved in election petition cannot therefore ignore this. Secondly is the question of politics and social strata, while the courts look at legality of an electoral process, they do not have the competency or jurisdiction to answer political question or social based question. It must be very difficult for a judge confronted by allegation of witchcraft as a factor that may influence voters. Politics therefore does not only endanger the judiciary but may fuel the situation further. It is also important to recognize that as much as justice is done or not done may not be measured through political lenses. Lastly is the question of cost. Unlike other petitions, the cost of election petition is fairly high hence a point to be considered before litigation. Are there alternative to litigation when it comes to electoral disputes in Kenya? Listening to political rhetoric and the fact that the Constitution 2010 was born after the 2007 post- election violence, it may look as though there are no other avenues to ventilate and solve electoral dispute, however, Kenya has both a legal social and electoral system that can solve electoral disputes and electoral contests
The Electoral Management Body (IEBC)
There is a general consensus that electoral management bodies have the function of managing electoral contest. In Kenya, the Constitution of Kenya 2010 in article 88(4) clearly prescribes the duties of IEBC. Consequently, article 99,138,180 and article 193 expands the reach of the commission with regards to vetting of candidates to vie for various seats, while article 99 gives power to the EMB to receive and after verification gazette names of nominated members of parliament. The international electoral standards, just like the constitution of Kenya 2010, are quite heavy on the duties of the EMB as include, registration of voters, keeping a clean register, vetting candidates, balloting, tallying, tabulating, announcing of results and giving out certificates. Lost to many however is the standard that the EMB needs to abide by. Article 81 (v) mirrors the international Standards of elections as it demands that elections need to be impartial, neutral efficient accurate and accountable. These inter alia have the effect of reducing electoral disputes as they ensure the playground is levelled. It is therefore quite possible that the EMB is the first pot of coal when dealing with electoral disputes. Proper management and faith in electoral body rarely leads to court cases
National Cohesion and Integration Commission (NCIC)
Elections just like sports are divisive and it is important for a country to heal and move forward-something that cannot be achieved by adversarial court processes. Unique is Kenya’s tribal politics which always open wounds of historical injustice, oligarchy, political assassinations, corruption and poor governance. The creation of National Cohesion and integration commission in the Constitution of Kenya 2010 was perhaps an acknowledgement of these issues; however the commission has failed in nurturing nationhood, instead Kenya is currently one of the six countries in Africa talking of secession. How does Kenya get out of this? Firstly, the NCIC needs to start working other than moving with the motion. There is a feeling amongst many Kenyans that this commission is only reactive which is not helpful. All they can account for is following up on hate speech which doesn’t even help the situation. Secondly, the commission needs to operate independently and not as an extension of the executive. The NCIC mandate requires them to demand accountability from the citizens, politicians and leadership. This cannot be done effectively if there is patronage from the leadership. Thirdly, there are issues of equal distribution of resources, equal opportunities, attention to marginalized and special interest groups that should be a concern of the commission and lastly, the idea of patriotism and nationhood. If the NCIC and other independent commissions were to do their jobs, Kenyans would not expect all the answers to come from the courts.
Parliament and Devolved Units of Governance
Historical debate on the harm of a centralized presidency led to change of the governance structure under the Constitution of Kenya 2010. The idea of the drafts persons was to donate the powers of the imperial presidency to the county government parliament and other institutions. This has definitely led to challenges of a huge wage bill and devolved poor governance system as well as a parliament which is an extended arm of the executive hence a litigious nation. It has been argued however that as much as party politics and the tyranny of number is important, parliament ought to be a voice of the people, representation of the diversity of the people and needs to check the executive. Article 96 and 98 of the Constitution of Kenya gives parliament the three roles of legislation, representation and oversight. If these were done properly, perhaps the litigious and passion on election petition will be on a law. A properly constituted parliament the power, competency and jurisdiction to craft a political solution unlike the courts. There is also a feeling that if the devolved governments were to work properly, there would be less interest in political power as resources would devolve to the people
Civil Society, Media and Electoral Observers
“Civil Society” is defined as the realm of organized social life that is open, voluntary, self-generated, autonomous from the State and bound by the rule of law. They play the role of supporting institutions of democracy and reducing election related conflicts. In addition to these, civil society can also discuss and offer political solutions therefore being an alternative to litigation. The media and election observers are primarily watch dogs, they are there to tell a story. If this is done accurately and objectively, it goes a long way in minimizing electoral disputes. International Standards on elections puts it on the media to give fair coverage to electoral candidates as they educate and undertake civic education. Election observers on the other hand write reports which also help in making changes and improving systems. There is however a feeling those elections observers in Africa are always of no value as all they do is give a nod to processes, particularly those of the AU
Traditional Dispute Resolution
The Constitution of Kenya 2010 recognizes elders in the way of solving disputes. This is also another way to consider other than the blotted court process. This process is advantages as its reliefs are not as limited as the formal courts. Tradition dispute resolution may be applied in relation to negotiated democracies. If this is one way that Kenya needs to go then it is worth consideration.
As much as an open judiciary is important, it is perhaps time for Kenya to learn that not every problem is legal. It is also a good idea to always explore and use the other methods of dispute prevention and resolutions. Remember, the courts have no answers to a political problem and the law is not a means to itself
Ouma Kizito Ajuong’
Poet (poetic fountain), Lawyer, Advocate of the High Court of Kenya, LLB (Hon.) Kenyatta University, PGD in Legal Practice, KSL