Handbook on Election Disputes in Kenya -1

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Handbook on Election Disputes in Kenya

Context, Legal Framework, Institutions and

Jurisprudence

Published by Law Society of Kenya with support from GIZ and Judiciary

October 2013


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Contents

About the Editor and Authors ......................................................................................... 4

Foreword ......................................................................................................................... 7

Acknowledgements ........................................................................................................ 9

Editors Note................................................................................................................. 10

Chapter 1....................................................................................................................... 1

Realizing the Transformative Promise of the 2010 Constitution and New Electoral

Laws ................................................................................................................................ 1

Godfrey M Musila ........................................................................................................ 1

Chapter 2..................................................................................................................... 22

Constitutionalism, the Rule of Law and Human Rights in Kenyas Electoral Process22

Ben Sihanya ................................................................................................................ 22

Chapter 3..................................................................................................................... 57

Resolution of Electoral Disputes in Kenya: An Audit of Past Court Decisions ........... 57Muthomi Thiankolu ...................................................................................................... 57

Chapter 4..................................................................................................................... 96

The Legal Framework on Resolution of Election Disputes in Kenya .......................... 96

Elisha Z Ongoya ........................................................................................................... 96

Chapter 5................................................................................................................... 151

The Role of Institutions in the Resolution of Election Disputes in Kenya ................. 151

Elisha Z Ongoya ......................................................................................................... 151

Chapter 6................................................................................................................... 178

Conclusions and Recommendations ........................................................................... 178

Godfrey Musila ........................................................................................................... 178


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About the Editor and Authors

Godfrey M Musila, Ph.D

Dr Musila is Senior Lecturer at the University of Nairobi School of Law and Founding

Director of the Nairobi-based African Center for International Legal and Policy

Research (CILPRA). He previously served as Senior Lecturer at Kenyatta University

School of Laws Public Law Department and as a Director of Research and Policy at

the Truth Justice and Reconciliation Commission (TJRC). He has authored and edited

several books, book chapters and journal articles in the area of international criminal

justice, transitional justice and human rights. His recent academic research and

consulting work focuses largely on the constitution, issues of governance and policy

and the Bill of Rights. He is co-editor of the seminal book Judicial Enforcement of

Socio-economic Rights Under the New Constitution: Opportunities and Challenges for

Kenya. He recently served as reviewer, CICs Guide on the Bill of Rights for the

Public Service.He is currently working on an expanded research project, The Bill of

Rights Handbook, which treats all the rights in the Bill of Rights from retrospective,

prospective and comparative perspectives. Dr Musila holds an LLB Hons from the

University of Nairobi, an LLM (cum laude) in Human Rights from the University of

Pretoria and Ph.D in International Criminal Law and Justice from the University of the

Witwatersrand, Johannesburg. He is an Advocate of the High Court of Kenya.

Ben Sihanya, SJD

Prof Ben Sihanya holds a PhD (JSD) from Stanford Law School and is ascholar at the

University of Nairobi Law School. He is a Professor-in-residence, Public Intellectual,

Mentor, and Advocate at Innovative Lawyering and Sihanya Mentoring, Nairobi and

teaches, researches, speaks and mentors on constitutionalism, intellectual property,

ICT law and education law. He is a former Dean, Law. He is a member of the EditorialCommittee of the Law Society of Kenya Journal and the LSKs Committee on Review

of Electoral Process (CREP). He chaired the Tasks Forces Drafting Committee that

drafted the Basic Education Act 2013, among others, and is the Chair of the Drafting

Committee of the rules and regulations under the Kenya Institute of Curriculum

Development (KICD) Act, 2013 and the Kenya National Examination (KNEC) Act,

2013. He is the Chair of the Competent Authority (Copyright Tribunal). His research

focus in 2010-2015 is on copyright, elections, presidentialism and administrative

bureaucracy in Kenya and Africa. He has been engaged by the Government of Kenya,

through its various organs like the Directorate of e-Strategy in the Office of the


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President, the Ministry of Education, the Attorney-Generals Office, the Ministry of

Justice and Constitutional Affairs, the Kenya National Commission on Human Rights

(KNHCR), and the Committee of Eminent Persons on Constitutional Review (COEP),

among others. Sihanya has published numerous articles in peer reviewed journals and

is finalising the publication of two books: Intellectual Property and Innovation in

Kenya and Africa: Transferring Technology for Sustainable Development

(forthcoming 2013) and Presidentialism and Administrative Bureaucracy in Kenya

(forthcoming 2013).

Elisha Ongoya

Elisha Z Ongoya is an advocate of the High Court of Kenya and is the managing

partner of Ongoya&Wambola Advocates. He holds a Master of Laws degree with a

specialization in Law, Governance and Democracy from the University of Nairobi. Healso holds a Bachelor of Laws degree from the same university and a post-graduate

diploma in legal practice from the Kenya School of Law. In the realm of legal

academia, Ongoya has previously served as an adjunct lecturer in civil litigation at the

Kenya School of Law. Currently, he serves as a lecturer in the department of public

law and heads the department of public law at Kabarak University. Mr Ongoyas

experience in electoral laws derives from his litigation experience where he has

litigated electoral disputes at the Supreme Court of Kenya, the Court of Appeal, the

High Court as well as the IEBC Committee on resolution of pre-election disputes. Mr

Ongoya has also served as a consultant to the Judicial Working Committee on Election

Preparedness where he trained judicial officers on a number of aspects relating to

resolution of election disputes in the run up to the 2013 general elections in Kenya. Mr

Ongoya has also consulted for the UNwomen, EISA, IFES, ICJ among other

organizations on various aspects of electoral law. He has also published widely on

election issues.

Muthomi Thiankolu

Muthomi Thiankolu is a Partner at Muthomi & Karanja Advocates and a Lecturer at

the University of Nairobi School of Law. He previously served as a Lecturer at the

Kenyatta University School of Law, Partner at Mohammed Muigai Advocates and

Council Member at the Meru University College of Science and Technology.

Muthomi's research and practice interests are in civil and commercial litigation,

constitutional and administrative law, public procurement law, international economic

law and electoral disputes. He has authored many journal articles in these subjects.

Muthomi has recently advised and represented clients in various complex and high-

value consultancy, legal advisory and litigious assignments. Mr Muthomi holds an


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LLM degree in International Economic Law (with distinction) from the University of

Warwick, an LLB (Hons.) from the University of Nairobi and a Postgraduate Diploma

in Legal Practice from the Kenya School of Law. He is an Advocate of the High Court

of Kenya.


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Foreword

It is accurate to suggest that the handling of electoral disputes, and the functioning ofthe electoral system in general have been at the center of multiple crises that have

confronted Kenya at various stages of our history and democratic evolution.

The adoption of the Constitution of Kenya of 2010 and the enactment of various laws

pursuant thereto, were partly meant to introduce far-reaching reforms in respect of

various aspects of our electoral system, including the framework for resolving electoral

disputes.

These reforms have been geared towards achieving at least three of the most critical

conditions for the conduct of credible elections: creating a conducive legal,

institutional and political context within which credible elections can be held;

establishing a competent and independent institutional framework to facilitate effective

management of elections and; establishing a robust, efficient, credible and well

resourced institutions with the capacity to settle election disputes timeously and

effectively.

As we grapple with this framework, and to implement our new constitution in general,

one of the challenges that confronts various actors including the judiciary, the bar, the

academia, civil society and the public in general is the lamentable lack of literature on

various legal issues. Yet, even as the constitution anchors the State on popular

sovereignty while reorienting our democratic dispensation towards a participatory one,

access to information is critical. Engagement by various actors with our democracy

will be facilitated greatly by a renewed rigorous legal scholarly literature and

contribution of the Law Society of Kenya in solving practical problems that confront

society.

This Handbook examines critical themes related to the framework established to

resolve electoral disputes in Kenya: the broad context in which this framework

operates, including the transformative promise of the Constitution of Kenya 2010 and

new electoral laws; constitutionalism, the rule of law and democracy in the electoral

process; the legal framework on election disputes in Kenya; the role of constitutional

and statutory institutions in the resolution of election disputes and; an audit of election

decisions by Kenyan courts made between the years 1963 and early 2013.


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We congratulate the authors for their work. With this seminal study, the authors have

made a vital contribution not only to scholarship on our new constitution generally, but

also in engaging with, systematizing and making accessible to a broader public the law

and jurisprudence relating to a critical aspect of the electoral system.

Laying bare the law, exposing areas that need reform and systematizing and critiquing

decisions made in relation to electoral disputes under the Old Constitution, and to

some extent the Constitution of Kenya 2010, will spur key actors to reflect deeply

about the current trajectory that the electoral system is on.

Once again, we thank and congratulate all those involved in realizing this important

work.

Nairobi, Kenya Dr Willy Mutunga

September, 2013. Chief Justice of Kenya

Mr Eric Mutua

Chair, Law Society of Kenya


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Acknowledgements

This seminal work on electoral disputes in Kenya is the product of concerted effort

from the Law Society of Kenya and the Judiciary, in particular the Judicial Working

Committee on Election Preparations (JWCEP) and the German Development

Cooperation (GIZ). My work was made easier by the contributions made by others,

and I have been honoured to work with them to realize this project.

I would like to first acknowledge the initiative on the part of the Chair and Council of

the Law Society of Kenya and the JWCEPchaired by Justice Mohamed Ibrahim in

conceptualizing this important project. I especially extend my thanks to Justice David

Majanja, a member of the JWCEP and the Head Ad Hoc Division on Election Dispute

Settlement, andHon. Lilian Arika, Secretary to the JWCEP for facilitating access to

cases reviewed in this Handbook, and for participating in conceptualizing the project.

This project would not have been realized without the financial and technical support

from the German Development Cooperation (GIZ). I thank them heartily. I would like

to equally extend my gratitude to two individuals, Lilian Njeru of LSK and Andrew

Buluma of GIZ who worked closely on this project, not only coordinating and

facilitating the work but also helping refine conceptual issues at the beginning.

I extend my sincere gratitude to chapter authors Prof Ben Sihanya, Advocate Elisha

Ongoya and Advocate Muthomi Thiankolu for their well-researched and written

chapters. I would also like to thank the editor, Dr. Godfrey Musila for his work and for

contributing the introductory and concluding chapters.

Apollo MboyaCEO /Secretary

Law Society of Kenya


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Editors Note

I was honoured, as editor, to work with several individuals to realize the editorial end

of this project. My sincere thanks go to all those that contributed to this project.

I would like to first acknowledge the initiative on the part of the Law Society of Kenya

and the Working Committee on Election Preparations (JWCEP) chaired by Justice

Mohammed Ibrahim in conceptualizing this important project. The law societys

current leadership must be congratulated for its emerging role in promoting legal

scholarship on critical legal issues of national importance. Gratitude goes to the

Honourable judicial officers of the JWCEP and the team at the JWCEP Secretariatfor

facilitating access to cases reviewed in this Handbook, and for participating in

conceptualizing the project.

I equally extend my gratitude to Lilian Njeru of LSK, Andrew Buluma of the German

Development Cooperation (GIZ) and their teams that worked closely with us on this

project, and facilitated matters in a way that allowed the authors to focus on their

respective chapters.

I extend my sincere gratitude to the authors, my colleagues at the Bar and university,

Prof Ben Sihanya, Advocate Elisha Ongoya and Advocate Muthomi Thiankolu whocontributed chapters to the Handbook. Their energy, initiative and scholarly discipline

reflects in the breadth and rigor of their of research work. I greatly enjoyed, and was

enriched by the intellectual exchanges we had during this process. My thanks equally

go to Darleen Seda and Margaret Njoki for assisting with editorial work.

I am greatly honoured to be associated with this collective effort, and thank Lilian

Njeru for asking me to serve as editor of this seminal work that we hope will spawn

more scholarly work, while facilitating engagement by multiple actors with this critical

aspect of our reenergised electoral system.

Dr Godfrey M Musila, Ph.D

Editor


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Chapter 1

Realizing the Transformative Promise of the 2010Constitution and New Electoral Laws

Godfrey M Musila

Contents

Chapter 1 ......................................................................................................................... 1

Realizing the Transformative Promise of the 2010 Constitution and New ElectoralLaws ................................................................................................................................ 1

Godfrey M Musila ........................................................................................................ 1

Introduction .................................................................................................................... 1

Major Constitutional Developments of Relevance for the Electoral System ................. 2

Major Developments in the Electoral System .............................................................. 14

Purpose of the Handbook on Election Disputes in Kenya ............................................ 15

Outline of Chapters ....................................................................................................... 16

IntroductionPartly in response to the findings and recommendations contained in the report of the

Independent Review Commission (IREC, or Kriegler Commission),1which was itself

a response to the tragic events that followed the disputed presidential election in 2007,

far reaching reform measures were undertaken in respect of various aspects of Kenyas

electoral system. The Constitution promulgated on 27 August 2010 and laws enacted

under it introduced far reaching institutional and legal reforms. In addition to revising

and consolidating the laws governing elections in Kenya, the new legal framework is

fairly progressive and has provided for all aspects relating to the electoral sector and

election process including: constitutional protection of political rights, including rights

to recall certain elected representatives; regulation of political parties; creation of

relevant institutions; delimitation of electoral areas; registration; nominations; general

conduct of elections and; resolution of election-related disputes.2

LLB Hons (Nairobi); LLM (Pretoria); Ph.D (Witwatersrand). The author is an advocate of the

High Court of Kenya. Email:[email protected] ideas relating to the section in this chapter on

the role of courts in electoral disputes were enriched by discussions I had with my friend and colleague,

Advocate Muthomi Thiankolu during the period that we worked on this Handbook. My sincere thanks to

him.1 See Government of Kenya,Report of the Independent Review Commission, 2009.2 For a more detailed view of reforms of the electoral system, see generally Elisha Ongoya and

Willis OchiengEISAs Handbook on Kenyas Electoral Laws and System (2012). See also chapter 4 in
mailto:[email protected]:[email protected]


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W s Oc e g S s andbook on enya s lecto al aws and System ( 0 ). See a so c apte

These reforms have been geared towards achieving at least three of the most critical

conditions for the mounting of credible elections: creating a conducive legal,

institutional and political context within which credible elections can be held;

establishing a competent and independent institutional framework to facilitate effective

management of elections and; establishing a robust, efficient credible and well

resourced institutions with the capacity to settle election disputes timeously and

effectively.

Major Constitutional Developments of Relevance for the Electoral System

The 2010 Constitution has introduced major reforms of a general character across

multiple sectors, including those specific to the electoral system. It is argued that other

than reforms specific to the electoral system (see below, see also Chapter 4 in thisHandbook), some of the changes of a general character (that are not specific to the

electoral system), especially those introduced by the constitution have an impact at

multiple levels in terms of how the electoral system functions, in particular, how

certain rules are interpreted; various issues relevant to electoral disputes are handled

and as well as the approach adopted by decision-making bodies, including courts.

These reforms are outlined briefly below.

The idea of a Transformative ConstitutionThe nature of our new constitution is not without implication for the resolution of

electoral disputes and the functioning of the broader electoral system. When one

considers a number of elements the legislative history and multiple narratives

around the constitutional review process as well as the final product of this tortured

process it becomes immediately apparent that the 2010 Constitution of Kenya is

unlike the Independence Constitution, which was fashioned on the (Western) liberal

model constitution. In the trajectory of developments relating to major world

constitutions, the Kenyan Constitution is the latest rendition of modern constitutions

and is perhaps the most modern and most progressive Constitution (following the

South African Constitution, and its ancestor, the Canadian Constitution). These

modern constitutions have been characterised aspost-liberal.3

The Kenyan Constitution merits another tag transformative constitution, which is

relevant, perhaps critical for the discussion of the electoral system, and the resolution

or related disputes. Unlike its liberal counterpart,of which the United States

this Handbook.3 Karl Klare Legal Culture and Transformative Constitutionalism, 14 South African Journal of

Human Rights (1998) p. 146-188


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uman ights ( 998) p. 6 88

Constitution is the arch-type, a post liberal constitution such as the Kenyan

Constitution (and the South African Constitution) does more than assign and check

state power.4 It is conceived and envisioned as an instrument of transformation and

reconstruction in the sense that it introduces fundamental change in social, political

and economic spheres of life and mandates key actors to effect the transformative

project in multiple ways.

The term transformative constitutionalism is attributed to Prof Karl Klare, an

American legal scholar who has written on South Africa in the context of the countrys

new constitutional order from which our own draws substantially. He defined

transformative constitutionalism' to mean:

[] a long-term project of Constitution enactment, interpretation, and enforcement committed(not in isolation, of course, but in a historical context of conducive political developments) to

transforming a country's political and social institutions and power relationships in a

democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes

an enterprise of inducing large-scale social change through non violent political processes

grounded in law.5

While a deeper treatment of this subject is beyond the scope of this chapter, there are

multiple elements that mark out our constitution as post-liberal and transformative.

These include: its awareness of historical context; it reconfigures the state (through

devolution); provides for a comprehensive bill of rights,6 which applies not only

vertically between the state and individuals but also horizontally between and among

individuals and non-state actors;7 the bill of rights includes a catalogue of social-

economic rights that require the state to intervene actively in society in favour of at

least the most vulnerable in society;8 the requirement that the courts should develop

the law (common law and customary law) to align it with the bill of rights, which is

4 On western liberal constitutions generally and the historical evolution of major world

constitutions, see generally David S Law and Mila Versteeg The declining influence of United StatesConstitutionNew York University Law Review(2012) Vol. 87:7625 K Klare Legal culture and transformative constitutionalism 14 South African Journal on

Human Rights (1998) 146 151-156. For a critique, see Theunis Roux, Transformative constitutionalism

and the best interpretation of the South African Constitution paper presented at the University of

Stellenbosch conference on Transformative Constitutionalism after Ten Years held on 8 August 2008.

Available athttp://repository.up.ac.za/bitstream/handle/2263/11676/Roux_Transformative%282009%29.pdf?sequen

ce=1 (accessed on 10 Sept 2013) and; Karin van Marle, Transformative constitutionalism as/and

critique follow up to presented at the University of Stellenbosch conference on Transformative

Constitutionalism after Ten Years held on 8 August 2008. Available at

http://repository.up.ac.za/bitstream/handle/2263/11678/VanMarle_Transformative(2009).pdf?sequence=

1 (accessed on 10 Sept 2013)6 See Chapter V, Constitution of Kenya.7 Article 2, Constitution of Kenya.

8 See Article 43, Constitution of Kenya.
http://repository.up.ac.za/bitstream/handle/2263/11676/Roux_Transformative%282009%29.pdf?sequence=1http://repository.up.ac.za/bitstream/handle/2263/11676/Roux_Transformative%282009%29.pdf?sequence=1http://repository.up.ac.za/bitstream/handle/2263/11678/VanMarle_Transformative(2009).pdf?sequence=1http://repository.up.ac.za/bitstream/handle/2263/11678/VanMarle_Transformative(2009).pdf?sequence=1http://repository.up.ac.za/bitstream/handle/2263/11678/VanMarle_Transformative(2009).pdf?sequence=1http://repository.up.ac.za/bitstream/handle/2263/11678/VanMarle_Transformative(2009).pdf?sequence=1http://repository.up.ac.za/bitstream/handle/2263/11676/Roux_Transformative%282009%29.pdf?sequence=1http://repository.up.ac.za/bitstream/handle/2263/11676/Roux_Transformative%282009%29.pdf?sequence=1


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See t c e 3, Co st tut o o e ya.

the framework for all economic, social and cultural policies;9 reconfiguring of

relationships at multiple levels (between state and citizen and among non-state actors);

its embrace of substantive justice and affirmative action; its recognition of popular

sovereignty and its embrace of participatory democracy10 and; its self-conscious

transformative role and mission.11 These, and other elements not cited here set our

constitution apart from the western liberal model constitution.

The general and specific reforms of the electoral system outlined below and discussed

in Chapter 4 of this Handbook should be seen as part of the conscious transformative

project envisioned in the constitution. It is suggested that for the transformative dream

of our constitution to be realized, it is critical for key state actors, including institutions

charged with resolving election-related disputes to appreciate the true nature of our

constitution and the multiple paradigm shifts it introduces. Klare and Langa havecounseled that the realization of the transformative ideals of the constitution requires: a

post-liberal reading of the constitution; paradigm shifts in multiple areas, including

new understandings of legal problems and a rethink of interpretation; new mindsets

among key actors; as well as a re-think of judicial role and methodologies deployed in

adjudication.12In the context of the subject matter of this Handbook, this will promote

a culture of democracy and transparent governance.

National Values and Principles

Today, the entire constitutional framework is underpinned by certain fundamental

values and principles. There is recognition as well that while there are specific

provisions elsewhere in the constitution that regulate specific issues, granting rights,

imposing duties, prescribing actions, donating powers and so on, the importance of

constitutional values and principles is that they tie everything together and in essence

constitute the soul of theconstitution, the guiding light providing a kind of roadmap

and justification of the entire constitution. While principles and values stand as a

pursuit of their own (this is not to suggest that national principles and values can

necessarily found a legal claim), their main function is to guide the interpretation of

specific provisions of the constitution and legislation (Acts of parliament, county

9 Article 20(3)(b) Constitution of Kenya.

10 See for instance Articles 1, 118, 159, 196, Constitution of Kenya.

11 For more on the transformative character of the 2010 Constitution, see Godfrey M Musila,

Testing Two Standards of Compliance: A Modest Proposal on the Adjudication of Positive Socio-

Economic Rights under the New Constitution in Japheth Biegon and Godfrey M MusilaJudicial

Enforcement of Socio-economic Rights Under the New Constitution: Challenges and Opportunities for

Kenya, (2012) 55-88 57-60.12

Klare (n 5 above) 150; Pius Langa, Transformative constitutionalism Prestige Lecture

delivered at Stellenbosch University (South Africa) on 9 October 2006. Available at

(Accessed on 10 September 2013).


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( ccessed o 0 Septe be 0 3).

legislation and by-laws) as well as the development of, application and interpretation

of sectoral policies, including policies related to the electoral system.

In this regard, Article 10(1) provides that the values bind all state organs, state officers,

public officers and any person who applies or interprets the Constitution as well as any

of these actors when they enact, apply or interpret any law. In the context of this

Handbook, all actors in the institutional framework established to resolve disputes

related to elections are similarly bound. Similarly, these constitutional values

enumerated in Article 10 must underpin the making and implementation of public

policy decisions by the named individuals and entities. Legislation, policy, regulations,

administrative directions or other measures that do not accord with these values and

principles are on their face, unconstitutional, thus null and void.

Not all the values listed in Article 10 are of relevance to the operations of the electoral

system. Article 10(2) lists the following: patriotism, national unity, sharing and

devolution of power, the rule of law, democracy and participation of the people;

human dignity, equity, social justice, inclusiveness, equality, human rights, non-

discrimination and protection of the marginalised; good governance, integrity,

transparency and accountability; and sustainable development.

A deeper inquiry into how these values and principles should be applied, in particular

by actors in the electoral system, lies beyond the scope of this chapter and publication.

It is evident however that our courts have to establish how the numerous values and

principles are to be deployed in judicial decision making (in this context and beyond)

short of anchoring legal claims, the only exceptions being human dignity, equality and

non-discrimination, which double up as substantive rights in the Bill of Rights.13

This said, I venture to suggest that, in deploying national values and principles in

exercise of interpretive function, the starting point is to identify which of these values

are relevant in general and those relevant to the specific question(s) before the court.

For instance, the following values and principles could be said to be relevant to the

electoral system in general, but may not necessarily be relevant in every electoral

13 Cf the situation in South Africa, where the courts have fewer values that they deploy as

interpretive tools (human dignity, equality, and freedom), the entire Final Constitution of the Republic

of South Africa (1996) having been pre-tested for conformity with 34 constitutional principles

(contained Schedule 4 of the Interim Constitution of 1994) by the newly constituted constitutional court

before the constitution was approved. These values were then omitted from the Final Constitution of the

Republic of South Africa, adopted on 8 May 1996. On the legislative history of the South African

Constitution, see generally . See also the Certification of the

Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744(CC); 1996 (10) BCLR 1253 (CC) (6 September 1996), available at

. (Accessed on 13 Sept 2013).
http://www.nelsonmandela.org/http://www.saflii.org/za/cases/ZACC/1996/26.pdf%3e.%20(Accessedhttp://www.saflii.org/za/cases/ZACC/1996/26.pdf%3e.%20(Accessedhttp://www.nelsonmandela.org/


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ttp://www.sa .o g/ a/cases/ CC/ 996/ 6.pd . ( ccessed o 3 Sept 0 3).

dispute or issue: the rule of law, democracy and participation of the people; human

dignity, equity, social justice, inclusiveness, equality, human rights, non-

discrimination and protection of the marginalised; good governance, integrity,

transparency and accountability. When the issue before the relevant electoral

institution is say the exclusion of an individual from the franchise or expulsion from a

political party, questions of human dignity, equality & non-discrimination, equity and

good governance could become relevant as guides to processes related to adjudication

of the issue.

Objects and Purport of the Bill of Rights

The 2010 Constitution is a rights-based constitution that is, by virtue of Article 2,

binding on all. The constitution makes the Bill of Rights an integral part of Kenyas

democratic state and as the mandatory framework for all governmental policiesincluding social, economic and cultural policies (Article19 (1)). As of necessity

therefore, all policies related to the electoral system (those that relate to all aspects of

the electoral system from membership in political parties, registration of voters to

tallying and announcement of results) must be human rights compliant.

The compliance of these processes with human rights are to be measured against at

least two aspects related to the Bill of Rights: 1) those of a general character relating to

the objects and purport of the Bill of Rights; and 2) against specific rights implicated

in a particular issue before the court or any of the other institutions in the electoral

system including mechanisms internal to political parties, the PPDT and IEBC.

In relation to the first issue, Article 19(2) provides that:

The purpose of recognising and protecting human rights and fundamental freedoms is to

preserve the dignity of individuals and communities and to promote social justice and the

realisation of the potential of all human beings (emphasis mine).

Reference here to human dignity is important. Human dignity underpins the entire Bill

of Rights (and constitution) and must be regarded, in the context of our constitution, as

the most foundational national value or principle.14 Although the preservation of

human dignity is a pursuit central to the protection of human rights, the notion does

not lend itself to easy or precise definition. However, it can be surmised that the idea

of having human dignity essentially means that an individual or groups are worthy of

14 In the case of South Africa, see Ian Currie and Johan de Waal, Human Dignity Ian Currie and

Johan de Waal The Bill of Rights Handbook, 5th

Edition, (2005) 272.
http://www.saflii.org/za/cases/ZACC/1996/26.pdf%3e.%20(Accessedhttp://www.saflii.org/za/cases/ZACC/1996/26.pdf%3e.%20(Accessed


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Jo a de Waa he ill of ights andbook, 5 d t o , ( 005) 7 .

concern, care, respect and deserving of protection.15In the words of the South African

Constitutional Court, human dignity requires us to acknowledge the value and worth

of all individuals as members of society.16The importance of human dignity has been

asserted on various occasions. The South African Constitutional Court has held

variously that the rights to human dignity and life are the most important rights.17

Indeed, it can be suggested that most, if not all rights, including political rights now

included in our constitution flow from ones inherent human dignity. It is not an

exaggeration thus to argue that governments are created and their powers limited

through a system of separation of powers as well as checks and balances so at to

preserve the dignity of individuals. Similarly, positive obligations are imposed on the

state in a variety of areas (for instance in relation to affirmative action that favour the

marginalized or protection of economic and social rights (in favour of at least the mostvulnerable in society) because these are essential for upholding their human dignity. It

follows that an inquiry or at least concern about human dignity will be central to

decision-making by institutions forming part of the electoral system.

Indeed, Currie and de Waal suggest that human dignity is the basis of several political

rights, particularly those relating to democratic governance since respect for individual

human dignity entails recognizing that all persons are able to make individual

choices.18One aspect to which the right to human dignity can apply relates to rights of

prisoners to vote. While Kenyan courts have had at least two opportunities to apply the

right, this opportunity has been missed.19 In Kituo Cha Sheria v IEBC and 2 Others,

the court referred to Article 10, which lists human dignity as a value rather than a

right.20To its credit, the decision cites the South African case ofAugust and Another v

Electoral Commission and Others21in which Justice Sachs of the Constitutional Court

justified the right of prisoners to vote in the following terms:

[u]niversal adult suffrage on a common voter roll is one of the foundational values of our entire

15 See S v Makwanyane1995 (3) SA 391 (CC) para 44.

16 See National Coalition for Gay & Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC)

para 29.17

See S v Makwanyane (no 15 above) para 44 and 328 (per justices ORegan and Chaskalson

respectively)18

Currie and de Waal (n 14 above) 274.Kituo Cha SheriavIndependent Electoral and Boundaries

Commission & 2 Others[2013] eKLR.19

Priscilla Nyokabi vAttorney general and Another, Petition No. 1 [2010] eKLRand; Kituo Cha

SheriavIndependent Electoral and Boundaries Commission & 2 Others [2013] eKLR.20

The distinction between human dignity as a right (Article 28) and human dignity as a value or

principle is not academic: while the right can anchor a freestanding claim, human dignity as a value

(under Article 10) cannot. It can only serve as a guide to interpretation.21

Arnold Keith August and Another v Electoral Commission and Others CCT 8/99 [1999] ZACC

3.


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3.

constitutional order The universality of the franchise is important not only for nationhood

and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite

literally, it says that everybody counts.In a country of great disparities of wealth and power it

declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the

same democratic South African nation; that our destinies are intertwined in a single interactive

polity. Rights may not be limited without justification and legislation dealing with the franchise

must be interpreted in favour of enfranchisement rather than disenfranchisement (emphasis

added).

With respect to the second facet of the inquiry related to compliance with the Bill of

Rights (see Article 19 above), resolution of electoral disputes could raise issues

relating to human rights in part because litigants could couch their claims in terms of

specific rights. In this regard, the starting point is the inclusion of political rightsin the

Bill of Rights. Again, while the issue of how these rights should be applied in a setting

of electoral disputes is beyond the scope of this chapter, a few observations are in

order.

It could be argued that the inclusion of political rights, especially those that empower

the sovereign bloc of citizens to choose leaders of their choice while restraining other

actors from interfering with these choices can be said to weigh in favor of restraint on

the part of the adjudicator when the democratic choice can be properly discerned from

an impugned process or decision. Equally, these rights must influence the posture of

the adjudicator in its readiness to invalidate impugned processes and decisions that

undermine rights and democratic choices. Broadly, the inclusion of political rights in

the Bill of Rights, which is the mandatory framework for policy making must as of

necessity have an impact on the approach adopted by the adjudicator (especially

courts) when dealing with particular electoral disputes (especially petitions). It is

suggested that the inclusion of political rights in Article 38 must temper the tendency

to regard an election petition as a dispute between two antagonistic parties. It is

suggested that an election petition should be viewed as having broader significance

than a contest or dispute between two parties: it is about the political rights of thevoters. Furthermore, it is not inaccurate to suggest that such a process is one in which a

public broader than those registered or those voting has a stake. If this is true, then

political rights, especially when understood as a collective right of self-determination

to elect leaders and a government of our choicemust temper the approach of the

court. In practical terms, this should impact procedure and various aspects of how a

court deals with a petition.

Other than political rights, depending on the particular dispute before the adjudicatingbody, other rights in the bill of rights could be at issue. The scenarios are perhaps


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limitless but these rights could include equality and non-discrimination; freedom of

expression; access to justice; the right to a fair administrative action and; the right of

access to information.

Principles of Exercise of Judicial Power and the Role of Courts

When speaking about the role of the legal profession in driving the transformative

project instituted by the constitution, both Karl Klare and former Chief Justice Pius

Langa counseled that change, entailing a shifting of paradigms and approaches, and

necessarily requiring retraining of seasoned legal minds is inevitable. Klare

addressing the South African legal profession but no less relevant for our situation

advised that members of the legal profession have to depart from the highly

structured, [technical], literal and rule-bound [formalistic] approach to interpretation,

to the policy-oriented and consequentialist approach.22

The often formalistic andtechnical legal reasoning that would be inconsistent with a transformative constitution

has to be jettisoned in favour of what Langa calls substantive legal reasoning and

substantive adjudication23of disputes by the courts and tribunals.

Perhaps informed by the not-so-glorious record of our judiciary, and the need to

transform the exercise of judicial function from a formalistic, technical and rule-bound

process to a teleological and purposive one that would enable the judiciary to dispense

substantive justice while playing the desired central role in transformation, the framers

of our constitution chose to include principles to guide the exercise of judicial

function.

In this regard, Article 159(2) of the constitution provides that:

In exercising judicial authority, the courts and tribunals shall be guided by the

following principles

(a) justice shall be done to all, irrespective of status;

(b) justice shall not be delayed;

(c) alternative forms of dispute resolution including reconciliation, mediation,

arbitration and traditional dispute resolution mechanisms shall be promoted, subject to

[criteria in clause (3)];

(d) justice shall be administered without undue regard to procedural technicalities

(emphasis added); and

(e) the purpose and principles of this Constitution shall be protected and promoted

(emphasis added).

22 Klare (n 5 above) 168.

23 Langa (n 5 above) 9.


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a ga ( 5 above) 9.

While it is beyond the scope of this chapter to conduct a thorough and detailed analysis

of this provision, I venture a few points here in view of the fact that aspects of this

provision have generated some interesting debates in the context of recent court

decisions, in particular RailaOdinga v The Independent Electoral and Boundaries

Commission and 3 Others.24Here, I refer only to Article 159(2)(d), which decrees that

justice shall be administered without undue regard to procedural technicalities . It can

be argued, as I do, that of all the principles enacted in Article 159, this is one singular

principle that could have far reaching transformative value in relation to the conduct of

electoral disputes, in view of its potential to impact procedure. As ably demonstrated

by Muthomi in chapter 3 of this Handbook, this is one aspect that has often been

applied by courts in a manner that defeats justice in election petitions. 25

Because it is a historic decision with the potential to impact deeply the evolution of

relevant jurisprudence in Kenya,Raila Odinga v IEBC and 3 Othersmerits a thorough

analysis and critique. However, this is not the place to conduct a full-blown critique of

this judgment. I comment only on the issue raised here (in no way exhaustively), with

a view to anchoring more general views on the role of courts in the handling of

election petitions in the context of a transformative constitutional and statutory legal

regime on elections.

With respect to Article 159(2)(d), the Supreme Court states (at para 218), when

justifying exclusion of belatedly-introduced evidence of alleged malpractice as

follows:

[] The essence of that provision is that a Court of law should not allow the prescriptions of

procedure and form to trump the primary object, of dispensing substantive justice to the

parties.This principle of merit, however, in our opinion, bears no meaning cast-in-stone and

which suits all situations of dispute resolution. On the contrary, the Court as an agency of the

processes of justice, is called upon to appreciate all the relevant circumstances and the

requirements of a particular case, and conscientiously determine the best course. The time-lines

for the lodgement of evidence, in a case such as this, the scheme of which is well laid-out in the

Constitution, were in our view, most material to the opportunity to accord the parties a fair

hearing, and to dispose of the grievances in a judicial manner. Moreover, the Constitution, for

purposes of interpretation, must be read as one whole: and in this regard, the terms of Article

159(2)(d) are not to be held to apply in a manner that ousts the provisions of Article 140, as

regards the fourteen-day limit within which a petition challenging the election of a President is

to be heard and determined.

24 RailaOdinga v The Independent Electoral and Boundaries Commission and 3 Others , SupremeCourt Petition Number 5 of 2013 as consolidated with Petitions 3 of 2013 and 4 of 2013.25

On this, see Chapter 3 on jurisprudence.


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O t s, see C apte 3 o ju sp ude ce.

In essence, the SCK acknowledges that Article 159(2)(d) is about dispensing

substantive justice, which is however not defined. The Court holds however that

when applying the rule, a court is to consider all circumstances, and in this case, the

14-day time period within which a presidential petition must be determined is, in its

view, material to determining whether to loosen rules of procedure to allow belated

filing of important evidence by the petitioner.

The SCK can be faulted for the arguably rather conservative position it adopts in

relation to a constitutional principle intended to transform judicial decision-making,

and in particular, for its mechanistic application of procedure. To appreciate fully my

take on this, it has to be recalled that at the beginning of the process, the SCK did, on

its own motion (without being prompted by either side), order a scrutiny of all Forms34 and Forms 36 which were used in the country's 33,400 polling stations, so as: (i) to

better understand the details of the electoral process; and (ii) to gain impressions on

the integrity of the process. The court also ordered re-tallying of results in 22 polling

stations identified by the petitioner.26

With this in mind, it is argued that the Supreme Court, in ordering suomotoscrutiny in

advance of allrelevant forms containing tallies of the presidential results in the March

4 2013 elections, the court made a ruling that aligned itself closely with the letter and

spirit of Article159(2)(d). However, allowing objections as to late filing of further

evidence that was in any case reportedly already part of material ordered to be

scrutinized by agents of the parties under supervision, excluding evidence that could

have impacted the outcome if it were considered and by apparently failing eventually

to reflect the scrutiny report in its final decision, the SCK regrettably reverts to a

conservative, formalistic and non-consequentialist approach of the past thus failing to

respond to the call of the new constitution that sets out to transform the electoral

system, laws and procedures relating to handling of petitions and evidence. The SCKs

refuge behind lack of time and the suggestion that allowing evidence would occasion

injustice to and would be unfair to respondents is, with respect, unconvincing. While it

is appreciated that parties (in this case the petitioner) should act diligently and be fully

cognisant of limited judicial resources (in this case time), the manner in which the

SCK dealt with a reportedly less than cooperative respondent that constitutionally has

custody of all relevant documents (pertaining to election results) is problematic. To my

mind, the IEBC, in view of its constitutional mandate and unique position of an

idealized impartial organizer of elections, shoulders unique responsibilities. Without

reference to what actually happened in this petition, IEBC should never be allowed to

26 See SCK ruling made at pre-trial conference held on 25th March, 2013.


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See SC u g ade at p e t a co e e ce e d o 5t a c , 0 3.

act as if it is aggrieved when its decisions are impugned in a court of law. I return to

this issue further below when proposing a possible approach for future petitions.

This brief discussion now leads me to make some observations related to procedure,

the conduct of petitions and the role of the court in election petitions. Some of these

relate to aspects in respect of which the SCK could have provided generalized

guidance based on the factual basis before it but appears to have failed to do so.

First, other than the apparently once-off decision in Raila v IEBC and 3 Others, it is

not clear when a suomotoorder relating to a generalized scrutiny of results in an

impugned election would or should be ordered by a court. I suggest here that such a

scrutiny should be ordered in all cases where substantial malpractice is alleged or

manifest.27

At least two reasons can be offered here. First, it is often said thatproceedings relating to election disputes are sui generis, being neither criminal nor

civil in nature. An election petition is essentially an audit of the election respecting a

particular electoral seat.I suggest that there is, for this reason, no justification why a

court should be wedded to civil procedure rules (and insist that parties are bound by

their pleadings). As argued above, election petitions are such that they require our

courts to adopt a position other than what is traditionalto our legal tradition. In other

words, courts should as of necessity adopt an inquisitorialapproach where the factual

truth and justice are the overriding goals rather than establishing whose truth (between

the contesting parties in a suit) should be validated by the court.

Second, and linked to the first reason, while our legal tradition is an adversarial one,

election disputes should not be regarded as an adversarial affair. As argued above in

relation to Article 38 on political rights, there are far too many people invested in the

outcome of an election. In fact, there is a sense in which the entire public, and

especially the voting public have a stake in the outcome of an election and any related

disputes. While the overriding reason is the political rights of voters now entrenched in

our constitution, there are public policy considerations as well that should dictate an

approach that seeks to establish the totality of the truth of what happened in an election

contest. I submit that the rule in Article 159 is enacted to achieve exactly this

objective. I suggest further that a court that strictly limits itself to pleadings and adopts

an approach in terms of which the process is viewed in strictly adversarial terms

defeats the transformative goals of the rule in Article 159.

27 As demonstrated by Muthomi in Chapter 3, the threshold for allowing scrutiny is fairlyflexible. Scrutiny is routinely ordered by courts where the court is satisfied that there is sufficient reason

to do so but in some cases, petitioners need not first call evidence to convince the court to order scrutiny.


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to do so but so e cases, pet t o e s eed ot st ca ev de ce to co v ce t e cou t to o de sc ut y.

My second observation relates still to procedure, the role of the court and the IEBC.

The fact that most of the relevant information and documents of pertinence to an

election dispute are in the custody of one party,especially one whose conduct has been

impugned, the IEBC,it requires the active intervention of the court to ensure the truth

comes out and justice is done. It would be difficult otherwise to reconcile the fact that

the election dispute is adversarial, as the court asserts,28with the need for substantive

justice to be done and the political rights of the voting public to be upheld. It is fair to

suggest, I think, that an electoral body whose conduct is impugned is likely to adopt a

stance and tactics aimed at ensuring that the truth does not come out, especially where

there are legitimate groundson the basis of which to rightly impugn its conduct of a

particular election contest. I submit that it is precisely for these reasons that the Rules

require the IEBC, the sole custodian of relevant documents, to automatically deposit

these documents with the court three days after the filing of a petition.29

It can beargued that forms in which results are recorded are not deposited in vain or for archival

purposes: it is to facilitate an audit of a particular election with the active participation

of the court.

In any case, it would be anachronistic for the courts to adopt an approach in which

petitioners were treated more stringently in matters relating to pleadings and evidence

than the constitutional body charged with the conduct of elections a critical aspect

in our attempt to deepen popular democracy. This approach could only encourage

laxity and bad behavior on the part of the electoral management body. In addition, it

would, at a macro level, stunt democratic evolution and promote lack of accountability

in a manner that clearly goes against constitutional values as well as core principles of

the electoral system enumerated in Article 81. It is fair to conclude that this approach

ultimately undermines public trust in the institutional framework constitutionally

established to mediate electoral disputes, with deleterious impact on the rule of law. It

is partly because of the weakening of the moral authority of institutions established to

mediate electoral disputes that violence we desire to eliminate from the conduct of

public affairs could unfortunately retain its allure for a despondent public.

Third, other than the issue of rights and the transformative ideals of the constitution, as

a practical approach, the courts should adopt a much more active and thus inquisitorial

stance to lead to discovery of truth. In any case, the Rules themselves foresee, as noted

already, a non-adversarial role for the election court.

28 Para 308.

29 See s 15(2) Supreme Court (Presidential Election Petition) Rules, 2013. It provides that theCommission [IEBC) shall deposit with the Registrar copies of Form 36 of the Election (General)

Regulations, 2012 in respect of the presidential election from each County.


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egu at o s, 0 espect o t e p es de t a e ect o o eac Cou ty.

Fourth, the amount of time available to a court to determine a particular dispute

demands a fresh approach and justifies an interventionist role on the part of the court

as well as a liberal application of procedure in our new electoral system. In a dispute

relating to a presidential election for instance, the court would manage its limited time

better if a position were adopted to the effect that in all disputes where substantial

malpractice is alleged or even permissive still, anyserious allegations are made out, a

suomoto order for a general scrutiny of results should be made at the start of

proceedings or at the earliest opportunity (preferably during the pretrial conference).

This would obviate the need for parties to make often long-winded arguments as to

which evidence is admissible or not. The overall goal is to achieve a just outcome and

to know what really happened. It is suggested that the constitutional imperatives of

accuracy, verifiability, transparency and accountability in the electoral process areunlikely to be assured and enforced where the court adopts the traditional approach

in which parties are allowed, through various devices, to suppress adverse truths while

advancing truths favourable only to their narrative.

Major Developments in the Electoral System

While many aspects of the new electoral laws and electoral system in general have not

been subject of much commentary, this Handbook does not set out to conduct a

comprehensive review of all these developments. As noted already, it modestly sets

out to examine only those aspects related to management of electoral disputes, one of

the most critical aspects of the electoral system.

These developments, which are contained in the constitution and other laws are ably

discussed by Ongoya in Chapter 4 on the legal framework, which obviates the need to

rehash these here. I make only a few comments in relation to the overarching

constitutional principles of the electoral system. To give effect to the goals of

transformation of the electoral system, the framers of the constitution saw it fit to

provide a set of principles that serve both as an interpretive tool as well as goals or

pursuits of the electoral system. Article 81 provides that:

The electoral system shall comply with the following principles

(a) freedom of citizens to exercise their political rights under Article

38;

(b) not more than two-thirds of the members of elective public bodies

shall be of the same gender;

(c) fair representation of persons with disabilities;


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(d) universal suffrage based on the aspiration for fair representation and

equality of vote; and

(e) free and fair elections, which are

(i) by secret ballot;

ii) free from violence, intimidation, improper influence or

corruption;

(iii) conducted by an independent body;

(iv) transparent; and

(v) administered in an impartial, neutral, efficient, accurate and

accountable manner.

Just as is the case for Article 10 and 159 that have been considered above, Article 81

has ordering value. I do not express additional views here, other than suggest that thisprovision should be made the subject of future investigation in view of jurisprudence

that is emerging under the 2010 Constitution.

Purpose of the Handbook on Election Disputes in Kenya

This Handbook is the product of a collaborative effort between the Judiciary and the

Law Society of Kenya. Conceptualized before the March 4thelections and completed

just as the first decisions relating to election petitions had started to trickle in, one of

the rationales for the Handbook was to contribute to the debate and processes aimed atsecuring a credible and fair dispute resolution mechanism for disputes that would arise

out of future elections (including the March 4th elections).30The thinking was, and

still is, that both the Bench and the Bar must be equipped with a broad understanding

of the constitutional and legal framework that now governs elections in Kenya, in

particular, the regime on electoral disputes. It is hoped that the jurisprudence that

emerges from and builds on this new legal framework will entrench the rule of law,

integrity, transparency, good governance, democracy and participation of the people.

The Handbook will therefore aid in dispute resolution by:

a. Providing the tenets of interpretation and resolution of disputes as envisaged inthe Constitution of Kenya 2010 hence leading to peace and stability;

b. Providing judicial officers with an analytical view of already existingjurisprudence to aid them in reaching sound decisions based on law;

c. Speed up the resolution of disputes as it will be good reference guide for boththe bar and bench. This will mean that only the novel and contentious areas

will be argued before the court; and

30 See Law Society of Kenya, Concept Note Relating to Election Handbook, 2013.


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See aw Soc ety o e ya, Co cept Note e at g to ect o a dboo , 0 3.

d. Provide a handy reference material for judicial officers, members of the bar,students, civil society and the general public.

The Handbook is written in simple and accessible language. While all chapters

demonstrate adequate depth of research and are of sufficient rigor in treatment of

issues as to be useful for judicial officers, practitioners, researchers and students, they

are also accessible for the general public. Access is enhanced through, among others,

the language adopted, as well as clear delineation of issues, themes and sub-themes in

headings and subheadings.

Outline of Chapters

The Handbook is not a collection of papers. Rather, it is envisioned as a publication in

which each chapter complements the others. The Handbook has 6 chapters coveringthe following themes: the transformative promise of the 2010 Constitution and new

electoral laws; constitutionalism and the rule of law in the electoral process; the

legislative framework on election disputes in Kenya; the role of constitutional and

statutory institutions in the resolution of election disputes; an audit of election

decisions in Kenya (19632013), excluding decisions made in relation to the general

elections held in 2013 and; findings and recommendations.

Chapter 1, authored by Musila introduces the study. In doing so, it explains the

rationale for Handbook and frames some of the key issues considered in the study. The

chapter argues that while the legal framework relating to the resolution of electoral

disputes provides for specific rules that govern particular aspects of the process, there

are overarching considerations that impact or should impact decision-making by key

actors. Of these, the nature of the constitution itself which sets out a particular vision

for the post 2010 Kenya, the provision of political rights contained in a bill of rights

underpinned by certain objectives as well as a set of general principles of a general

character and those pertaining to the electoral system and the exercise of judicial

function are critical.

The chapter characterizes Kenyas constitution as transformative, and post-liberal. It

has argued that its transformative ideals, which are also mirrored in the new legislation

specific to the electoral system, should reflect in how election-related disputes are

handled by relevant actors. Similarly, the author engages in discussion, sometimes in

abstraction, around how some of the concepts as well as values and principles should

be used.

The Handbook takes the preliminary view that the context in which the electoral


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process evolves including the resolution of relevant disputes is critical. In this regard,

it explores how the context in which elections occur and electoral disputes are

mediated impacts the process of resolving disputes arising from the elections (and vice

versa). In this regard, Prof Ben Sihanyaschapter contextualizes the electoral system in

rule of law debates. This chapter problematises and contextualises several related

concepts: constitutionalism, rule of law, human rights and democracy. It argues that

the electoral process is anchored on constitutionalism, the rule of law and human rights

in the sense that adherence to these ideals, in particular constitutionalism and the rule

of law, strengthens the electoral system by encouraging compliance with rules, respect

for decisions and ultimately, fostering legitimacy. For its part, the operation of an

efficient, fair and rule-based electoral system fosters trust in the process and its

outcomes thus promoting acceptance of its decisions and strengthening the rule of law

and constitutionalism.

Having explored comparative literature on the subject, the chapter adopts the

operational definition of constitutionalism and rule of law. Constitutionalism is defined

as the habitual acceptance of the rules enshrined in the constitution or consistent with

constitutional values and principles as the ultimate bases of political choice. Sihanyas

chapter rightly prescribes that in the Kenyan context, constitutionalism will be

achieved only, as a starting point,where there is habitual acceptance by all, and

adherence to principles and rules in the constitution, the rule of law and the supremacy

of the constitution.

Sihanyas chapter also argues that one of the main problems with Kenyas electoral

process include the fact that the values, principles, policies, rules and institutions have

tended to be manipulated, ignored or abrogated by those controlling the electoral

security, administration and judicial process. Periodic violence around electoral cycles

has been one of the consequences.

The chapter further argues that lack of proper entrenchment constitutionalism in Kenya

has for a long time undermined resolution of electoral disputes. Disputes in respect of

presidential poll invariably emerge following general elections. Provisions of the law

meant to resolve such disputes have not been followed to the letter, or at all. He cites

examples that demonstrate that instead, relevant provisions of the law have

occasionally been interpreted in a partisan, mischievous, dishonest or cynical and

criminal manner to favour political or ethnic elite in government keen on retaining

power at all costs.

Sihanyas contribution then identifies three main questions or challenges that face


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Kenya today regarding electoral justice in the context of constitutionalism, the rule of

law and democracy: the need to implement the provisions of the constitution to secure

electoral justice; reforming certain electoral laws to secure electoral justice, including

on nomination by political parties; the role of the IEBC in the nomination process;

campaigning finance; and dispute resolution and; the structural and human resource

problem that has afflicted Kenya and other African States whereby revolutions,

reforms or change is frustrated or manipulated by agents of thestatus quo.

The author is emphatic that the Constitution of Kenya, 2010 has the potential to

reverse trends and to secure free, fair, transparent accountable and verifiable elections.

The author suggests that the struggle for human rights, the rule of law and

constitutionalism must continue in order for electoral justice to be realized in Kenya.

Over the years, our courts have entertained numerous election petitions. Indeed, while

this body of case law has not previously been accessible to the public, chapter 3,

authored by Muthomi Thiankolu establishes that there is today a substantial corpus of

case law relating to election matters. The chapter provides an audit of past electoral

decisions in Kenya by thematically reviewing jurisprudence related to election

disputes between the year 1963 and early 2013. In part because of time constraints as

well as the fact that the finalization of the Handbook coincided with the period during

which our courts had began to hear election petitions arising out of the 2013 elections,

the chapter does not include decisions made by the courts under the new constitution

and electoral laws. These must form the subject of subsequent work, as recommended

at the end.

Muthomis chapter provides a quick reading and summary of the rules and principles

developed by the courts between 1963 and early 2013. The chapter has relevance

beyond providing a historical record of election petitions handled by our courts during

this period. The principles teased out of the case law by Muthomi remain relevant

under the new electoral regime, which is outlined in subsequent chapters in this

Handbook. In terms of the scope of review of case law, the chapter does not discuss

any of the landmark decisions in detail. It is organised thematically in terms of key

issues that have emerged from case law and will continue to be central to election

petitions going forward. As such, the chapter serves as a handy reference in respect of

all relevant issues related to election petitions from filing of the petition to remedies

likely to be ordered by an electoral court. The chapter treats, among others, the

following core issues related to election petitions:

Jurisdiction and choice of forum;


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Court procedures and practices relating to a range of issues including standing,documentation, filing and service of petitions, security for costs, pre-trial

conferencing, interlocutory applications and hearing;

Burden and standard of proof; Threshold for nullification of elections; and Remedies including: scrutiny and recount; declaration of apparent winner,

nullification of election, reporting of election offences, costs and appeals and

review.

The chapter shows that, today, there is a substantial body of case law relating to

election matters. The audit of this case law relating to election petitions discloses an

area of law riddled with inconsistencies and controversy. Controversial jurisprudence

and the perception that the courts could not give timely and effective remedies to bona

fidepetitioners undermined public confidence in the judiciary as an honest arbiter of

political disputes. This often had serious political consequences. By way of example,

due to the perception that the courts could not honestly arbitrate political disputes, the

aggrieved side refused to refer the disputed 2007 presidential election to the courts

leading to unprecedented loss of life and property in the violence that ensued following

the declaration of the disputed results.

According to Muthomi, the audit reveals a proclivity on the part of the courts todecide political disputes on legal and procedural technicalities. Muthomi takes the

view that this past practice of eschewing substantive justice in favour of legal and

procedural technicalities is inconsistent with the letter and spirit of Kenyas current

and past electoral laws, which require(d) election courts to decide all matters before

them without undue regard to technicalities. He concludes by stating that while the

Constitution of Kenya, 2010 and the Elections Act, 2011 have established a fairer,

more efficient, modern and progressive legal framework for the conduct of elections

and the resolution of electoral disputes, it remains to be seen whether the courts will

adopt a new approach as dictated by the progressive electoral laws enacted under the

new order. The author rightly notes that the new legal framework requires a paradigm

shift and change of mind-sets, on the part of the judiciary in the handling of election

disputes.

For its part, chapter 4 authored by Elisha Ongoya considersthe new legal framework

on election disputes in Kenya. The chapter identifies,outlines and discusses the various

laws and legal principles on the various aspects of election disputes in Kenya. In

explaining the nascent legal regime on election disputes, the chapter also delves,

although not exhaustively, into the available emerging jurisprudence on the various


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g y, g g j p

aspects of this legal framework as interpreted by the courts immediately following the

March 4 2013 elections. In view of conclusions reached on particular issues, the

chapter makes a case for reform of the legal framework where there appear to be gaps,

silences inconsistencies, absurdities and abeyances.

For purposes of this chapter and Handbook, legal framework on election disputes

refers to the various legal materials that constitute the legal framework on elections,

but which focus on setting out the various forms of disputes in the electoral process,

which establish institutions, procedures, mechanisms for redress and or resolution of

the disputes and the various remedies. Ongoya argues that the existence of, and

characteristics of dispute resolution mechanisms are part of the indicia for free and fair

elections and that an electoral process that lacks sound mechanisms for dispute

resolution fails the free and fair test. Indeed, Kenyas experience shows that legitimacydeficits experienced by certain regimes over our independence history can be

attributed in part to lack of independent, well resourced institutions mandated to

resolve and effectively mediate political disputes. In addition, the post election

violence experience (2007-2008) attests to the fact that lack of trust by the public in

institutions mandated to resolve election disputes can birth catastrophic results as

protagonists shun these institutions and resort to violence and other extra-legal

measures.

The constitution and various laws enacted under it have created a system of institutions

charged with the important task of resolving election disputes. The underlying

objective in reforms associated with the electoral system was to create a system of

institutions that can effectively and timeously resolve these disputes. In chapter 5,

Ongoya isolates and discusses the various institutions that play various roles in

resolution of electoral disputes in Kenya. This chapter discloses that under the new

dispensation, the system of resolving electoral disputes consists of a multiplicity of

institutional actors of both judicial and quasi-judicial character. These are:

Political parties (internal mechanism as per the constitution of parties) Registrar of Political Parties Political Parties Dispute Tribunal (PPDT) Independent Electoral and Boundaries Commission (IEBC) High Court (elections at County, Governor, Senate, National Assembly as well

as enforcement of political rights)

Magistrates courts (county representative elections) Supreme Court (presidential elections)


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In terms of organizing the chapter, the author usefully adopts a thematic approach,

which makes it easier not only to organize the relatively bulky material but also for the

reader to follow. Informed by the reality that there is overlap in the mandates of some

of these institutions in respect of various aspects of electoral disputes, the author

identifies the various types of disputes in the electoral process and then discusses the

institutions and the specific roles they play in resolving the particular disputes

identified. While there is a tendency to think of election disputes in terms of election

petitions, petitions form but one category of election-related disputes. The thematic

disputes teased out of the election process (cycle) by the chapter are:

Disputes relating to political rights of citizens (Article 38 of the Constitution); Disputes relating to delimitation of electoral area boundaries; Political party disputes; Disputes relating to nominations; Disputes relating to voter registration; Disputes relating to certain issues associated with or arising out of campaigns

election offences and breaches of the Electoral Code of Conduct and;

Disputes relating to election petitions (in respect of 6 different electoral seats)

To wrap up the study, chapter 6 authored by Musila draws conclusions from the entirestudy and makes recommendations in respect of various relevant issues relating to the

subjects and issues considered in the Handbook. Part of this exercise consists in

teasing out and developing recommendations hinted at or overtly proposed in previous

chapters in this Handbook.


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22

Chapter 2

Constitutionalism, the Rule of Law and Human Rights in Kenyas

Electoral Process

Ben Sihanya

Contents

Chapter 2 ....................................................................................................................................... 22

Constitutionalism, the Rule of Law and Human Rights in Kenyas Electoral Process................ 22

Ben Sihanya ................................................................................................................................ 22

Introduction to Constitutionalism in Kenyas Electoral Process.................................................. 23

Conceptualising Constitutionalism, Constitutional Government and the Rule of Law in Elections

....................................................................................................................................................... 25

Constitution in Kenyan and African Context................................................................ 25

Constitutionalism in Kenya........................................................................................... 27

Constitutionalism in Classical and General Kenyan Context ............................................... 27

Constitutionalism in the Electoral Process in Kenya and Africa .......................................... 29

Constitutionalism in the context adjudication and governance in Kenya ............................. 29

The rule of law in Kenya .............................................................................................. 30

Constitutional Government in Kenya ........................................................................... 32

Kenyas Struggle for Constitutional Implementation, Constitutionalismand rule of law33

Problematising and Contextualising Constitutionalism in the Kenyan Electoral Process ............ 34

Constitutional Basis of the Electoral Process in Kenya ................................................ 34

Constitutional rules and principles for a just electoral process in Kenya ..................... 36

Elections as part of constitutional government in Kenya ............................................. 37

Struggles Towards Constitutional Government and Electoral Process in Kenya ......... 37

Recent Developments in the Electoral Process in Kenya ............................................................. 37

Typology of Elections and cases under the 2010 Constitution ..................................................... 40

Recurrent Themes in Election Petitions in Kenya: Process and Outcomes .................................. 42

Free, fair, Transparent and Verifiable Electoral Process in Kenya ............................... 42

Jurisdiction and Timelines in Presidential Elections in Kenya ............................................. 45

Jurisdiction in presidential election petitions .................................................................... 45

Timelines in disposal of presidential election petitions .................................................... 46

Jurisdiction in other Election Petitions ................................................................................. 48

Struggles for Constitutional Government Through Electoral Justice in Kenya ........................... 48

Role of Amicus Curiae in Election Petitions in Kenya and Comparative Context ...... 48

Problematising and Contextualizing Amicus Curiae in Kenya .................................... 49


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23

Amicus curiae in the US ............................................................................................... 50

Amicus Curiae in Kenyan Courts on Election Petition Disputes ................................. 50

Burden and Standard of proof in Election Petitions in Kenya ...................................................... 51

What is the Burden of Proof and Which Party is to Discharge the Burden? ................ 51

Irregularities by Parties and Election Officials in Kenya ............................................. 51

Electoral Crimes in Kenya: Parties, Election Officials, Candidates and Voters .......... 53

Sub judiceand Contempt in Electoral Cases in Kenya ................................................................. 53

Procedural Technicalities in Election Petitions in Kenya ............................................................. 54

Constitution of Election Petition Benches in Kenya ..................................................................... 55

Public Interest v. Petitioners Interest and free, fair, Transparent and Verifiable Elections........ 55

Conclusion and Reform Proposals on Constitutionalism, the rule of law and Election Petitions in

Kenya ............................................................................................................................................ 55

Abstract

The context in which the electoral process evolves is critical. This chapter problematises and

contextualises the related concepts of constitutionalism, rule of law, human rights and

democracy. It argues that the electoral process is anchored on constitutionalism, the rule of law

and human rights in the sense that adherence to these ideals, in particular constitutionalism and

the rule of law, strengthens the electoral system by encouraging compliance with rules, respect

for decisions and ultimately, fostering legitimacy. For its part, the operation of an efficient, fair

and rule-based electoral system fosters trust in the process and its outcomes thus promoting

acceptance of its decisions and strengthening the rule of law and constitutionalism. The chapter

indicates that one of the main problems with Kenyas electoral process include the fact that thevalues, principles, policies, rules and institutions are always manipulated, ignored or abrogated

by those controlling the electoral security, administration and judicial process. Periodic violence

has been one of the byproducts. The author is emphatic that the Constitution of Kenya 2010

has the potential to reverse trends and to secure free, fair, transparent accountable and

verifiable elections. The struggle for human rights, the rule of law and constitutionalism must

continue to realise electoral justice in Kenya.

Introduction to Constitutionalism in Kenyas Electoral Process

This chapter focuses on the constitutional foundations and context of, as well as the quest for

electoral justice in Kenya. We proceed from the pe

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