Urgent need to formulate appropriate legislation specifying the deadline by which complaints and appeals could be filed in the Independent Electoral and Boundaries Commission

Brief facts

The 3^rd respondent was an employee of the National Police Service prior to deciding to run for political office. The applicant contended that the applicant was in breach of section 43(5) of the Elections Act which provided that a public officer who had intentions to contest an election was obliged to resign at least 6 months before seeking elective office as he did not resign 6 months ahead of the elections scheduled for August 9, 2022. 

The 3^rd respondent claimed that the application was res judicata, as the issues it raised had been raised earlier in the appeal Shukin Oonge Mongare v Eric Omanwa Basweti & 3 Others Hcc No. EPA 004 of 2022. The 3^rd respondent further contended that the applicant had used the wrong procedure when he moved the court by way of judicial review instead of an appeal. 

The applicant sought among others; an order of certiorari to quash the decision of the 1^st respondent (IEBC) neglecting/refusing to hear and determine the complaints by the applicant against the 3^rd respondents nomination to contest for the election of Member of County Assembly for Bomwagamo Ward in North Mugirango Constituency within Nyamira County contained in the letter to the chairperson of the IEBC dated July 02, 2022; and the complaint dated July 01, 2022. The applicant also sought an order of mandamus to compel the IEBC to hear and determine the applicants complaints against the 3^rd respondents nomination.

Issues

1. Whether it was the mandate of the Independent Electoral and Boundaries Commission to authenticate certificates or other documents presented by persons seeking to be registered as candidates in an election. 
2. Whether where there was evidence that proved an aspirant was not eligible to be registered as a candidate, that aspirant could be allowed to vie on the strength that the evidence had not been available earlier. 

Held

1. The court in Shukin Oonge Mongare v Eric Omanwa Basweti & 3 Others did not render a substantive decision on the issues which had been placed before it. Accordingly, the issue concerning the date when the 3^rd respondent resigned from public service, had not been determined by any court of competent jurisdiction. After the court held that it lacked jurisdiction to handle the appeal; and when it had intimated that such matters could only be entertained if brought through judicial review, it would be a mockery to slam the door in the face of the ex parte applicant when he had done as was advised.
2. The IEBC did not have the letters dated June 23, 2022 and June 29, 2022, at the time when it made the decision to register the 3^rd respondent as a candidate. Therefore, at that time, the IEBC could not be said to have erred when it registered the 3^rd respondent.
3. The constitutional mandate of the IEBC did not include the process of authenticating certificates or other documents presented by persons seeking to be registered as candidates in an election. It would be a logistical nightmare to require the IEBC to conduct forensic examination of the documents presented by aspirants. However, the applicant had filed a new complaint, which was backed by new evidence. The IEBC could not refuse to give a hearing to the applicant. In arriving at that decision, the court was not sitting in an appellate capacity.
4. There was no substantive decision by the IEBC, on the complaint dated July 1, 2022. It was the mandate of the IEBC to hear and determine pre-election disputes. It could not therefore refuse to undertake its statutory obligation. Insofar as the IEBC declined to give a hearing to the ex parte applicant, it abdicated its responsibility. The date for the elections was just around the corner. However, the matter at hand would not require a lengthy hearing. The IEBC should have been able to hear the complaint, and make a determination within hours, at most.
5. There was an urgent need to formulate appropriate legislation that should specify the cut-off date by which complaints and appeals, if any, could be brought. In the current cycle of elections, numerous appeals were being filed even though there were less than 30 days to the date of elections. When the IEBC was expected to make proper arrangements for the elections, it should have sufficient time and opportunity to finalize preparations.
6. One of the key issues that needed clarity and certainty was the identity of the candidates. When disputes continued to linger as to whether or not an aspirant should or should not be a candidate, the IEBC could not cause ballot papers to be printed. The delay could jeopardize the elections. On the other hand, there was a need to accord a fair hearing to persons who had complaints.
7. All stakeholders needed to take stock, after the 2022 general elections, to discuss and formulate rules or regulations, or even statutory amendments that would strike an appropriate balance between the need to grant hearings and the need to bring to an end any cases, early enough, so that the IEBC could have sufficient time to make proper preparations for the elections.
8. If a person was able to provide evidence that proved that an aspirant was not eligible to be registered as a candidate, the IEBC or Kenyans would not allow that aspirant to vie simply because the evidence had not been available earlier.