Court rules it is unethical for a Presiding Officer to leave a polling station during elections

Charles Ong’ondo Were v Joseph OyugiMagwanga& 2 others

Petition No.1 of 2013

High Court at Homa Bay

E. N Maina, J

September 2, 2013

Reported by Mercy Ombima

Brief Facts

The Petitioner lost his seat for Kasipul Constituency in Homa Bay County to the First Respondent, during the 4^th March 2013 general elections. He complained that various irregularities occurred during that election exercise. He gave an example of where the number of votes cast in several polling stations had exceeded the number of registered voters, among others. The Petitioner wanted the court to annul the election results for Kasipul Constituency due to the alleged irregularly.

The First Respondent had in turn disputed the Petitioner’s legal standing to institute the petition, claiming that the Petitioner had not met the academic qualifications set out in the law, for one to be qualified to vie for a constituency seat. He also argued that the Petitioner was not properly nominated as a candidate because he had decamped from his original political party (Orange Democratic Movement ODM)) to another party (The Independent Party (TIP)) after the window for nominations had closed.

Issues

            i. What constitutes a free and fair election?

            ii. Whether it was proper electoral practice for a presiding officer in a polling station to leave the station unmanned during the election process

            iii. Whether the Member of Parliament for Kasipul Constituency had been validly elected during the 4^th March 2013 general elections.

            iv. Whether the election court had jurisdiction to determine issues on nominations and validity of a contestant’s candidature before elections    were conducted.

Jurisdiction – jurisdiction of an elections court – jurisdiction to determine election disputes arising before elections were conducted – whether the court had mandate to determine pre-election issues – where the Petitioner’s candidature to vie for a seat in kasipul Constituency was objected to – claim that the Petitioner had not been properly nominated – whether the election court was the proper forum for ventilating such issues – Elections Act of 2011, section 74

Electoral Law – electoral malpractices – conduct of electoral officers (IEBC officials) during the election process – claim that the presiding officer  of one of the polling stations (Opondo polling station), irregularly left the station to go and vote elsewhere - where the polling station was left under the control of polling clerks and agents – whether the absence of the presiding officer at the polling station constituted electoral malpractice - Constitution of Kenya 2010 articles 81(a); 81(b); 81(c); 81(d); 81(e); 86, Elections Act 2011, section 83

Held

1. An elections court was obliged to bear in mind the provisions of section 83 of the Elections Act 2011 in arriving at its determination. Not only was it to be established that the irregularities had occurred, it was also to be established that the said irregularities were of such a magnitude, that they substantially and materially affected the result of the election

2. A free and fair election was one that complied with article 81 ((a)-(e) of the Constitution of Kenya 2010. An election was to comply with the principles of universal suffrage based on the aspiration for fair representation and equality of vote. It was required to be by secret ballot, free from violence, intimidation, improper influence or corruption. Elections were conducted by an independent body, transparent and administered in an impartial, neutral, efficient, accurate and accountable manner. Article 86 of the Constitution set out the parameters within which the Independent Electoral and Boundaries Commission was expected to conduct elections. Elections were also required to be in conformity with the principles and procedures provided for in the Elections Act 2011.

3. Although nothing in the Elections Act and the Independent Electoral and Boundaries Commission Act (IEBC Act) prevented a presiding officer from leaving his station during elections, it would be unethical to do so. It would also be a breach of the code of conduct for members and employees of the IEBC which required them to perform their duties in a manner that maintained public confidence in the Commission. IEBC officials were require to discharge all their duties in a professional, timely and efficient manner, and in line with the Rule of Law .

4. No election could be said to be free of irregularities. Although the electronic voter identification device at one polling station (Agawo Primary School) had malfunctioned, that was not a unique occurrence. It was common knowledge that the failure had occurred countrywide.The evidence adduced by the Petitioner to prove that the elections were not free, fair and credible fell far short of the standard required. It was contradictory, inconsistent and untrustworthy.

5. The allegation that the Petitioner was not a qualifiedcandidate to vie for the constituency seat for Kasipul and hence not fit to institute an election petition, could not be entertained in court. The court was not the right forum to adjudicate those issues. Those issues were pre - election issues which under section 74 of the Elections Act, should have been ventilated before the IEBC Dispute Resolution Committee. Once the Petitioner was cleared by IEBC, and ran and lost the elections, and later felt aggrieved, he had a right to file the petition.

The election for Kasipul Constituency was substantially conducted in conformity with the Constitution and the First Respondent was validly elected as the Member of the National Assembly for Kasipul Constituency

Cases:

East Africa;

1. Joho v Nyange & another (No 4 of 2008) 3 KLR (EP) 500 – (Explained)
2. Khaoya, Joseph W v Eliakim Ludeki & another Election Petiton 12 of 1993 – (Explained)
3. Mburu v Waibara & 2 others [2011] KLR 15– (Explained)
4. Murgor v Igenya & another (2008) KLR (EP) 191– (Explained)
5. Murgor v Ingonga & another  (2008) KLR (EP) 71 – (Explained)
6. Mutegi, Mercy Kirito v Beatrice Nkatha Nyaga & Independent Electoral & Boundaries Commission Election Petition No 5 of 2013– (Explained)
7. Muthutho v Kihara & 2 others (2008) KLR 10 – (Explained)
8. Mututho v Kihara [2008] KLR 10– (Explained)
9. Ndeti, Wavinya v Independent Electoral & Boundaries Commission & 2 others Election Petition No 4 of 2013 – (Explained)
10. Ng’ang’a, Wanguhu & another v George Owiti & another Election Petition No 41 of 1993– (Explained)
11. Odinga, Raila & 3 others v Independent Electoral & Boundaries Commission & 3 others Petition No 5 of 2013 - (Mentioned)
12. Steven Kariuki v George Mike Wanjohi & 2 others in Nairobi Election Petition No 2 of 2013– (Explained)
13. Waweru v Mugo & 2 others [2008] KLR 85 – (Mentioned)

Statutes:

East Africa;

1. Constitution of Kenya, 2010 articles 81(a-e); 88(4); 86 – (Interpreted)
2. Elections (Amendment) Act, 2012 (Act No 31 of 2012) – (Interpreted)
3. Elections (Parliamentary and County Elections) Petition Rules, 2013 (Act No 24 of 2011) rule 4(1)(b)(2)(3)(4); 10(1)(3)(b); 21(b) – (Interpreted)
4. Elections Act, 2011 (Act No 24 of 2011) sections 20, 22(1)(b); 24(1)(b); 62; 63; 64; 65; 74; 83; 84 – (Interpreted)
5. Evidence Act (cap 80) sections 109 – (Interpreted)
6. Independent Electoral and Boundaries Commission Act, 2011 (Act No 9 of 2011) section 4– (Interpreted)

Texts & Journals:

1.  Lord Mackay S., (Ed) (1991) Halsbury’s Laws of England UK: Lexis Nexis Butterworths 4^th Edn Vol 15

Reported by Teddy Musiga

Election Law – Scrutiny and recounting of votes – grounds for application for scrutiny or recount of votes – petitioner’s claim that the counting and tallying of votes was interfered with – rule 33 (1) and (2) Elections (Parliamentary and County) Elections Petition Rules