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Comparative Analysis of Presidential Election Petitions In Kenya and Other Jurisdictions

By Linda Awuor and Monica Achode
May 15, 2013

 

1.0: Introduction

A presidential election petition is the formal process of challenging the process, the outcome or any aspect of the election of a President. The procedure for challenging an election varies from jurisdiction to jurisdiction but usually starts by way of an election petition complaining of either an undue election or undue return.

The recently concluded presidential election petition in Kenya’s Supreme Court was arguably the first presidential election petition to be heard and decided on its merits. Previous presidential election petitions were decided on technical or procedural matters such as improper service of court documents, failure to properly sign the pleadings, etc.

The Ivory Coast and Ukraine are among the few countries in the world in which a judicial organ cancelled the presidential election results and ordered a repeat poll.

The following is a summary to help public understanding of the recent supreme court decision in Kenya Raila Odinga & 5 others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR and to look at presidential election petitions in other jurisdictions to establish how these were decided by the respective Courts.

2.0: Kenya

Before the new constitutional dispensation, there were no time-lines in either the Constitution or the electoral laws regarding determination of election petitions. Currently, the Constitution provides clear time limits within which a presidential election petition ought to be heard. Article 140 of the Constitution decreed this time frame. Article 140 (1) and (2) of the Constitution provides as follows:

  • A person may file a Petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.
  • Within fourteen days after the filing of petition, under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.

Previously, all parliamentary and presidential election petitions were filed in the High Court with parties having the right to appeal to the Court of appeal. In contrast, the Constitution of Kenya, 2010, Election petitions challenging any aspect of the election of a president are filed and tried by the Supreme Court (Article 163 (3) of the Constitution). On the other hand, elections petitions challenging Parliamentary and County elections are heard by the High Court (Article 165 (3) (a) of the Constitution) and the Resident Magistrate’s court (Section 75 of the Elections Act) respectively.

The following are petitions challenging the election of a person to the office of the president that have been heard and decided by the Kenyan Courts.

Moi V Matiba & 2 others (2008) 1 Klr (ep) 622

Civil Appeal No 176 of 1993

Gachuhi, Cockar &Omolo JJ A

Court of Appeal at Nairobi

April 22, 1994

 

Rule 4 of the National Assembly Elections (election petition) Rules, 1993 set out the contents and form of an election petition. In subsection 3, it provided, among other things, that “the petition ….shall be signed by all the petitioners.”

The appellant was the respondent to an election petition filed by the first respondent. The first respondent’s wife had signed the petition in exercise of a power of attorney granted by him. I n the proceedings before the Election Court, the appellant had raised a preliminary point and argued that the petition was incompetent because it had not been signed by the petitioner as required by rule 4(3). In the appellant’s opinion, the signature appended to the petition by the petitioner’s wife as a donee of a power of attorney was irregular and did not meet the requirements of rule 4(3).

After hearing the submissions, the Election Court ruled that the signature on the petition, which was the same signature used by the first respondent in his nomination and which had been accepted by the Electoral Commission of Kenya fulfilled the requirements of rule 4(3) and that its acceptance met the justice of the case.

The appellant appealed against the decision. The question on the appeal then became whether the words used in rule 4(3) in relation to who was to sign the petition were of a mandatory nature or whether they were merely directory so as to allow a donee of a power of attorney to sign a petition on behalf of a petitioner

Held:

1. The Constitution (sections 10 and 44) had given a right to any person who was entitled to vote in an election to challenge an election and the correct procedure to do so was prescribed in the National Assembly and Presidential Elections Act. The Constitution and the Act imposed an obligation on a prospective petitioner to observe the rules prescribed in the procedure in order to be able to enjoy the rights to which he is entitled under the Constitution.

2. The words such as “signed by the party” or “signed by him” in a statutory provision must be given in their natural meaning and that is that the party must personally affix his signature.

3. The words used in rule 4(3) of the Rules were mandatory and the sub rule did not allow the petition to be signed by anyone else apart from the petitioner himself.

4. The action of the Electoral Commission to accept the attorney’s signature was not a judicial decision of a competent court of law. It was therefore not any kind of authority binding on any court and it was wrong for the Election Court to rely on the decision of the Commission.

Appeal Allowed, and the petition was struck out with costs.

 

Orengo vs. Moi and 12 others

High Court at Nairobi

Election Petition No 8 of 1993

O’Kubasu, Mbito&Mwera JJ

May 30, 1994

In this case, the petitioner’s main ground of claim was that the election of the 1st respondent, the president of the Republic of Kenya following the 1992 presidential election was prohibited by section 9(2) of the Constitution of Kenya. The section provided that a person shall not be elected to the office of the president for more than two terms with each term lasting for five years. It was contended that the first respondent had already served 3 terms. 1979-1983, 1983-1988, and 1988-1993.

Held:

1. The court’s duty was to interpret the law as it was gleaning the intention of parliament from the words in the statute being construed. The plain words of a statute being precise and ambiguous were to be given their ordinary and natural meaning.

2. Courts did not and could not construe to bring out what parliament ought to have legislated. The courts were to construe the intention of Parliament as was clearly expressed in the statute in question.

3. Act no 6 of 1992 amended the Constitution to such an extent that could properly be described as giving a new look to the election and holding of the office of the President. From the language of the whole Act, the set-up of sections and the reasonable and sensible flow therein it was clear that Parliament made this law with focus on the future.

4. In reading, construing an applying section 9 of the Constitution, the court was of the view that the ordinary and natural meaning thereof was one attached to the words used therein, the context of the amending Act vis a vis the constitution and the effect of the same: the global effect was one attaching to future elections of the office of the president.

5. From the plain language of the statutes, they were to be interpreted to operate prospectively. Only that statute could say otherwise. Accordingly it could not be imputed that a statute could as well have been intended to operate retrospectively.

6. A statute had to have the words to the effect that it could operate retrospectively or such an effect could be gleaned from a necessary implication as conveyed by the words used.

7. Section 9(2) of the Constitution was not meant to operate retrospectively.

The Petition was dismissed

 

Kibaki V Moi & 2 others (no 3) (2008) 2 Klr (ep) 351

High Court, at Nairobi

Election Petition No 1 of 1998

O’Kubasu, Mbogholi Msagha & Keiwua JJ

July 22, 1999

The respondents to the election petition moved the court to strike out the petition principally on the ground that it had not been personally served on them as required by law. Each respondent swore an affidavit to support his application. The petitioner, who opposed the application, moved the court for an order to cross examine the respondents on the content of their affidavits.

Held:

1. It is not the function of parliament to repeal the subsidiary legislation made by any other rule making body under delegated statutory provision. It is for that other body to follow the cue given by parliament in amending a section of a particular Act

2. The requirement in rule 14 of serving an election within 10 days applied to a petition under section 20(1)(c) of the National Assembly and Presidential Elections Act (seeking a declaration that a seat in the National Assembly had become vacant) and not under 20(1)(c).

3. The only mode of service under rule 14(1), if the rule still applied to a petition under section 20(1)(a) was personal service. As such, service had not been effected, indeed there was no suggestion that personal service was attempted and repulsed, the petition was a nullity.

The 1st respondent’s application was allowed and the petition struck out

This decision was later upheld in the Court of Appeal by Judges Chunga (CJ), A Lakha, Owuor JJ and Omolo.

The issue of service of election petitions was later handled by a full bench of the Court of Appeal in the case of Abu Chiaba Mohamed V Mohamed Bwana Bakari & 2 Others [2005] eKLR.

In this case,  the 1st respondent brought an election petition in which he stated that he had been a voter in the Lamu East elections and that various electoral malpractices had taken place on account of which the elections should be declared null and void. The appellant then took out a motion seeking to have that petition struck out on the ground that it had not been personally served on him within 28 days after the date of the Kenya Gazette as required by section 20(1)(a) of the National Assembly and Presidential Elections Act.

In opposing the motion, the 1st respondent swore a replying affidavit in which he narrated how he had made several unsuccessful attempts to personally serve the petition on the appellant. Khaminwa J found in favour of the 1st respondent and declined to strike out the election petition.

In the appellant’s appeal against the High Court decision, the Court of Appeal comprising of seven judges was asked to overrule its previous decision in Mwai Kibaki v Daniel Toroitich Arap Moi Civil Appeal No. 172 of 1999.

The Court held:

(Githinji JA dissenting)

1. On the material before the trial Judge, any reasonable tribunal would be fully justified in concluding, as those who wanted to effect service upon the appellant did, that the appellant had gone underground with the sole purpose hiding from those who intended to effect personal service upon him.

2. The Kibaki v Moi decision did not establish any proposition that even where it is proved that a party was hiding with the sole purpose of avoiding personal service, yet such a party must still be personally served.

3. The decision clearly recognized that if personal service which is the best form of service in all areas of litigation is not possible, other forms may be resorted to.

4. Personal service remains the best form of service in all areas of litigation and to say that Members of Parliament are a different breed of people and different rules must apply to them as opposed to those applicable to other Kenyans cannot support the principle of equality before the law.

5. No man can be allowed to rely on his own wrong to defeat the otherwise valid claim of another man.  The appellant could not be allowed to rely on his having successfully hidden himself from the attempts of the 1st respondent to personally serve him to defeat the 1st respondent’s petition challenging the validity of his election.  The effort made by the  1st respondent  to personally serve him  amounted to personal service on him and the learned trial Judge was right in holding that he had been served.

The appeal was therefore dismissed.

 

Mwau v Electoral Commission of Kenya & 2 Others

High Court at Nairobi

Election Petition No 22 of 1993

O’Kubasu, Mbito&Mwera JJ

May 11, 1994

 

The petitioner herein challenged the validity of the election of the successful candidate Daniel Toroitich Arap Moi. His contention was that the 2nd respondent had not been duly nominated by the Electoral Commission and further that the respondent did not present the 40 standard sheets of foolscap papers to the Commission as was required by section 5(3)(b) of the Constitution. The petitioner had altered the Commission officials of this requirement in a write up when he was presenting his own papers. It was the petitioner’s case that the respondent failed to provide there items rendering his nomination invalid.

The respondent opposed the application on the grounds that there was nothing known in law as a standard foolscap and that even if there were, it would not render the respondents nomination invalid.

The issues for determination before the court were whether the provisions of the Constitution as read with section 12 of the Regulations were breached: and secondly, whether the requirement breached was mandatory and had to lead to the invalidation of the nomination.

Held:

1. The nomination herein including those of the 2nd respondent and the petitioner were valid and that all the candidates were entitled to participation in the poll.

2. (Orbiter) The primary duty of any judicial body when construing any given instruments or writings, is to give the words thereof a meaning, an ordinary meaning. In interpreting all written laws, unless the context otherwise requires, the Interpretation and General Provisions Act requires that certain meanings or effects be given to certain expressions.

The Petition was therefore dismissed

 

Raila Odinga & The Independent Electoral and Boundaries Commission & 3 others [2013] eKLR

Supreme Court of Kenya at Nairobi

W.M. Mutunga CJ & P.K Tunoi; M.K Ibrahim; J.B Ojwang; S.C Wanjala; N.S Ndungu, SCJJ.

April 16, 2013

Reported by Michael Murungi and Emma Kinya Mwobobia

BACKGROUND TO THE PETITION
On 4th March, 2013 the first general election was held in Kenya. This was the country’s first election to be held under a new Constitution that had been promulgated in August 2010. The election was conducted by the Independent Electoral and Boundaries Commission (IEBC). Under article 138 (4) of the Constitution it was provided that a candidate shall be declared elected as president if the candidate receives more than half of all the votes cast in the election and at least twenty five per cent of the votes cast in each of more than half of the counties.

During the tallying process by the IEBC, there was a failure of the electronic results transmission system which left the IEBC no other option but to resort to the manual tallying of results which resulted in an inability on the part of the IEBC to declare results as and when they were available.

In its computation of the total votes cast, IEBC had included the rejected votes in the calculation of the threshold-percentages in the tallying of the Presidential election votes with the IEBC chairman declaring that the rejected votes would count towards the final tally and that percentages of all the votes tallied for each candidate would have to be updated to reflect the inclusion of the rejected votes.

On 9th March 2013, the Chairman of the IEBC, Issack Hassan (the 2nd respondent), announced that Uhuru Kenyatta (the 3rd respondent) had received 6,173,433 votes out of a total of 12, 338,667 (50.07% of all votes cast), while Raila Odinga (the main petitioner) had received 5,340,546 votes (43.31% of the votes cast). Pursuant to article 138(4) of the Constitution, Uhuru Kenyatta was declared the President-elect.

Subsequent to this declaration, three petitions were filed in the Supreme Court. The first petition contested the inclusion of rejected votes in the final tally which the petitioners alleged had a distorting effect on the percentage votes won by each candidate. The second petition contested the manner in which the electoral process was conducted by the IEBC with regard to the Presidential election. The third petition challenged the legality of the IEBC’s declaration of the 3rd respondent and 4th respondent as President-elect and Deputy President-elect respectively. The final petition which was filed by Raila Odinga and which was later designated as the pilot petition in the consolidation of the petitions was based on the allegation that the electoral process was so fundamentally flawed, that it was impossible to ascertain whether the presidential results declared were lawful.

At a pre-trial conference held on 25th March, 2013 and presided over by the Chief Justice, counsel for all the parties in the consolidated petitions agreed on four broad issues for determination in the three petitions:

a)     Whether the 3rd respondent and the 4th respondent were validly elected and declared as the President-elect and Deputy President-elect of the Republic of Kenya;

b)     Whether the Presidential election was conducted in a free, fair, transparent and credible manner in compliance with the Constitution and the Law;

c)     Whether in determining that a candidate has met the threshold stipulated in article 138(4)(a) of the Constitution, the term “all the votes cast” includes

i. Only valid votes, or
ii. Both valid and rejected votes;

d)     What consequential declarations, orders and reliefs were available to the petitioners?

On 30th March, 2013, the court delivered its findings on these issues and the reasons for its decisions were delivered on 16th April, 2013.

 

Election Law – presidential election – validity or presidential election – election petition challenging the validity of the election of the President and Deputy President – grounds that the President – elect and deputy President-elect had not obtained the basic vote threshold to be validly elected – allegation of various irregularities that would affect the credibility of the presidential election – whether the irregularities were so grave as to render the election void – Constitution of Kenya, 2010, articles 10,138,140

 

Election Law – presidential election – vote tallying – rejected votes – whether the term “all the votes cast” includes only valid votes or both valid or rejected votes – whether rejected votes should be included in the tally of all the votes cast – claim by the petitioner that the rejected votes should be excluded from the presidential election tally and order a re-tally of the votes cast – grounds that the rejected votes were marked ballot papers that had failed to comply with the approved standards in casting of votes during elections – whether the rejected votes should have been included in the final tally of the presidential election – Constitution of Kenya, 2010 article 138 (4)(a), Elections (General) Regulations, 2012 regulation 77

 

Election Law – presidential election – vote tallying – re-tallying of presidential votes – allegations of discrepancies in some polling stations – where Forms 34 & 36 which a returning officer uses to declare presidential election results in a polling station and a constituency/county respectively, reflected discrepancies in 5 out of 22 polling stations with respect to numbers of votes cast – whether the discrepancies were substantial so as to affect the credibility of the electoral process

 

Evidence – burden of proof – standard of proof – burden and standard of proof in an electoral cause – party on whom the burden of proof lies – the standard to which the burden is to be discharged – whether proof is on a balance of probability or proof beyond reasonable doubt – where evidential burden keeps shifting depending on the circumstances – threshold to be met by a petitioner in an electoral cause

 

Jurisdiction – Supreme Court of Kenya – original and exclusive jurisdiction – special jurisdiction of the Supreme Court to hear and determine presidential election petition – jurisdiction not boundless as it is limited in time and scope – where it only relates to legal, factual and evidentiary questions relevant to the determination of the validity of Presidential Election – political question – role of the court in a fundamentally political-cum-constitutional process – principles that guide the court in its attempt to resolve the electoral question – whether the Supreme Court had jurisdiction to preside over the presidential election petition – Constitution of Kenya, 2010, articles 140,163(3)(a), Supreme Court Act, (Act No 7 of 2011).

Held:

1. The Supreme Court’s jurisdiction in a presidential election was both original and exclusive. No court other than the Supreme Court had the jurisdiction to hear and determine disputes relating to an election for the office of the President. This jurisdiction, however, was not boundless in scope as it is circumscribed in extent and in time. Limited in extent, in that it relates only to an inquiry into the legal, factual and evidentiary questions relevant to the determination of the validity or invalidity of a presidential election.

2. The Court must take care not to usurp the jurisdiction of the lower courts in electoral disputes. The annulment of a presidential election will not necessarily vitiate the entire general election and need not occasion a constitutional crisis, as the authority to declare a presidential election invalid is granted by the Constitution itself. The petitioner is required to present a specific, concise and focused claim, which does not purport to extend the Supreme Court’s jurisdiction beyond the bounds set out in the Constitution. The Supreme Court will only grant orders specific to the Presidential election.

3. According to article 140 of the Constitution, it is clear that expedition of the presidential election disputes was of the essence. As the electoral process had led to the declaration of a winner who could not have assumed office pending the determination of the petition, the protracted holding on of a president-elect, as well as a retiring President, would have presented a state of anticipation and uncertainty, which would not have served the public interest.

4. Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there had been non-compliance with the law, but that such failure of compliance had not affected the validity of the elections. This emerged from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Therefore the petitioner must have set out his petition by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.

5. An electoral cause was established much in the same way as a civil cause where the legal burden rest on the petitioner, but depending on the effectiveness with which the petitioner discharged the burden, the evidential burden could keep shifting.  Ultimately, it was upon the court to determine whether a firm and unanswered case had been made.

6. The threshold of proof should in principle have been above the balance of probability though not as high as beyond reasonable doubt save that it would not have affected the normal standards where criminal charges linked to an election were in question.  In the case of data specific electoral requirements (such as the threshold specified in Article 138(4) of the Constitution for an outright win in the presidential election), the party that bore the legal burden of proof must have discharged it beyond any reasonable doubt.

7. As a basic principle, it should not be for the court to determine who comes to occupy the presidential office, save that the Supreme Court, as the ultimate judicial forum, entrusted under the Supreme Court Act, 2011 (Act No 7 of 2011) with the obligation to assert the supremacy of the Constitution and the sovereignty of the people of Kenya must safeguard the electoral process and ensure that individuals accede to power in the presidential office in compliance with the law regarding elections. The Supreme Court must hold in reserve the authority, legitimacy and readiness to pronounce on the validity of the occupancy of that office, if there is any major breach of the electoral law, as provided in the Constitution and the governing law.

8. The special circumstances in the presidential election petition required an insightful judicial approach and there may have been unlimited number of ways in which such an approach would have guided the Court. The fundamental one was the fidelity to the terms of the Constitution and of such other law that objectively reflected the intent and purpose of the Constitution which represented the special and historic compact among the people and had expressly declared that all powers of governance emanated from the people and were to serve the people.

9. The purpose of the pre-trial conference was set out in rule 10 of the Supreme Court (Presidential Election Petition) Rules, 2013. It is a preparatory forum used to lay the ground rules for the expeditious, fair and efficient disposal of the petition. The pre-trial conference enables the court, upon hearing the parties and if need be, on its motion to make appropriate orders and give directions for ensuring the fair determination of the dispute.

10. The evidence on record portrayed that the tallying was indeed conducted in accordance with the law and the relocation of the political party agents had not undermined the credibility of the tallying nor provided a basis for annulling the outcome of the presidential election.

11.  The voter registration process was essentially transparent, accurate and verifiable and the voter register compiled from this process served to facilitate the conduct of free, fair and transparent elections. The explanations given on the discrepancies in the published registers were sound and in accordance with the laws.

12.  The Court declined to make orders or grant reliefs sought by the petitioner, which would have occasioned conflicts between its jurisdiction and that of other lower courts especially as regarded other sets of election, which had proceeded on the same Voter Register.

13.  The conduct of the presidential election was not perfect, even though the election had been of the greatest interest to the Kenyan people who had voluntarily voted. Although there were many irregularities in the data and information capture during the registration process, they were not so substantial as to affect the credibility of the electoral process and besides, no credible evidence had been adduced to show that such irregularities were premeditated and introduced by the 1st respondent, for the purpose of causing prejudice to any particular candidate.

14.  In regard to rejected votes being added in computing the final results, once a ballot paper which had been cast did not satisfy the requirements under the law, it could not have been added in determining the election. The progressive character of the Constitution, and the interpretation of the provision of article 138(4) of the Constitution which provided that a candidate shall be declared elected as president if the candidate receives more than half of all votes cast in the election and at least twenty-five per cent of the votes cast in each of more than half of the counties, referred only to valid votes cast, and did not include ballot papers, or votes cast but were later rejected for non-compliance with the terms of the governing law.

15.   IEBC was entitled to resort to the use of the manual tallying system as the Constitution and the electoral had laws specifically given the IEBC the discretion to either work with a full electronic system or a manual system. The Court recognized that due to the inherent failure of the electronic systems and the fact that the manual tallying had not been faulted as being erroneous, the computation could not have been challenged. Therefore the IEBC had no option after the transmission technology failed but to revert to the manual electoral system.

16.  The applicable law had entrusted the discretion to IEBC on the application of such technology as may be found appropriate. Since such technology has not yet achieved a level of reliability, it cannot as yet be considered a permanent or irreversible foundation for the conduct of the electoral process.

17.  It was clear that a fresh election under article 140 (3) of the Constitution would have been triggered by the invalidation of the election of the declared President-elect by the Supreme Court following a successful petition against such election. Such a fresh election was built on the foundations of the invalidated election and could only have involved candidates who had participated in the original election. There would therefore have been no basis for a fresh nomination of candidates for the resultant electoral contest.

18.  According to the law, the fresh election would have been confined to the petitioner and the President-elect while all the remaining candidates who had not contested the election of the President-elect would be assumed to have either conceded defeat or acquiesced in the results as declared by the IEBC and such candidates could not have participated in the fresh election.

19.  There was no evidence to prove that the candidate declared as the President-elect had not obtained the basic vote threshold and therefore this justified his being declared the validly elected President of Kenya.

20.  The presidential election was conducted in a free, fair, transparent and credible manner in compliance with the provisions of the Constitution and all the relevant provisions of the law.

21.  The 3rd and 4th respondents were valid elected and declared as the President and Deputy President elect by the 2nd respondent in the presidential elections.

22.  Rejected votes should not have been included by the 2nd respondent in calculating and determining the final tallies in favour of each of the presidential candidates.

Petition disallowed. Presidential election results as declared by IEBC upheld.

 

Each party to the petition to bear their costs

 

3.0: UGANDA

Rtd.Col.Dr.Kizza Besigye v Electoral Commission,Yoweri Kaguta Museveni

(Election Petition No.1 of 2006)

[2007] UGSC 24

30 January 2007

On 23 February 2006, Uganda held its first Presidential Election under a multiparty political dispensation following the change of political system by a national referendum, from a movement political system under which the country had been governed since 1986 when the National Resistance Government assumed power following a bush war. This was the third Presidential election held under the 1995 Constitution. The Constitution was amended in 2005 to remove Presidential terms limits from two terms to indefinite eligibility. The Presidential election was held on the same day as the Parliamentary elections unlike in the previous Presidential elections.

During the elections five candidates were nominated as Presidential candidates, four representing political parties or organisations and one as independent. The petitioner stood as candidate for Forum for Democratic Change (FDC). The 2nd Respondent stood for the National Resistance Movement (NRM), Mrs Miria Kalule Obote stood as candidate for the Uganda People’s Congress (UPC), while John Ssebaana Kizito was for the Democratic Party (DP), and Abed Bwanika stood as an independent candidate.

On 25 February 2006, the 1st Respondent declared the national results of the Presidential elections with Yoweri Kaguta Museveni garnering (59.28%) against the petitioners 37.36%. The petitioner, who was aggrieved by the declaration of the results, filed a petition before the Supreme Court under Article 104(1) of the Constitution and section 59(1) of the Presidential Elections Act.

The Petitioner alleged in the petition that the 2nd Respondent Yoweri Kaguta Museveni personally committed several illegal practices and offences while campaigning. He complained that the 2nd Respondent, used words or made statements which were malicious, made statements containing sectarian words or innuendos against the Petitioner and his party, made abusive insulting and derogatory statements against the Petitioner, FDC or other candidates; made exaggerations of the petitioner’s period of service in Government and the reason why he was moved from several portfolios; used derisive or mudslinging words against the petitioner; used defamatory or insulting words; knowingly or recklessly made false statements at a rally that FDC had frustrated efforts to build another dam, that the petitioner was in alliance with Kony and PRA and other terrorists, and that the petitioner was an opportunist and a deserter.

In the petition, the Petitioner made complaints against the respondents. Against the 1st Respondent, he complained that it did not validly declare the results in accordance with the Constitution, and the Presidential Elections Act; that the election was conducted in contravention of the provisions of the Constitution, Electoral Commission Act and the Presidential Elections Act; and that the provisions of Section 59(6) (a) of the Presidential Elections Act are contrary to the provisions of Article 104(1) of the Constitution.

In a majority decision of four to three, the Court ruled in the favor of Museveni, stating:

  1. It was not proved to the satisfaction of the Court, that the failure to comply with the provisions and principles laid down in the Election Acts and the Constitution, affected the results of the Presidential election in a substantial manner.
  2. The fact that these malpractices were proved to have occurred is not enough the petitioner had to go further and prove their extent, degree, and the substantial effect they had on the election.

 

4.0: COTE D’IVORE

The presidential election of La Côte d’Ivoire was held in two rounds. The first hurdle took place on 31 October 2010 and the second round, a two-horse race between President Laurent Gbagbo and the then opposition leader Alassane Ouattara, contested on 28 November 2010. On 2 December 2010, the Ivorian Independent Electoral Commission (IEC) released provisional results indicating that opposition Alassane Ouattara had triumphed in the second bid with 54% of the vote.

Laurent Gbagbo appealed to the Constitutional Council to rule on the numerous and serious irregularities that marred the election in the north. Gbagbo noted in particular, the absence of its representatives and delegates in many polling stations, they were hunted by the military rebels of Forces Nouvelles who did not hide their support to Alassane Ouattara; the stuffing ballot boxes in favor of his opponent; the transport of minutes by unauthorized persons; the lack of voting booth; the increase of the votes cast in favor of his opponent. The net effect of the above was that both Gbagbo and Ouattara proclaimed themselves as victors and accordingly, took the sacred presidential oath of office to lead their polarised people who had for some days, bathed themselves with blood and sweat. The Constitutional Council, on reviewing the evidence, held:

Held:

  1. Under the terms of articles 32 and 94 of the Constitution, the Constitutional Council controls the regularity of the operations of the election of the President of the Republic, rules on the disputes relating thereto and proclaims the final results of them.
  2. Under Article 38 of the Code, any candidate has the right, through one of his delegates, to control all voting operations, examination of ballots and calculation of the votes at the premises where these operations are carried out, and to require the registration in the official reports of all the observations, protests or disputes on the aforementioned operations. In this case, the complainant explained that his representatives and  delegates in the polls were expelled or prevented from having  access to the polls and sometimes they were kidnapped, their mandates and electoral documents destroyed; Thus his representatives and de legates were not able to supervise neither the conduct of voting nor the counting of ballots;
  3. The absence of representatives and delegates in various polling stations due to  abuse constituted a serious irregularity  engraves likely to discredit the  sincerity with the poll and justifies thus cancellation  of the  poll in the  departments mentioned
  4. From the combined reading of Articles 5 and 34 of the Electoral Code as amended by Ordinance 2008-133 of April 14th 2008, adjustments to the Electoral Code as a qualified elector is proven by the registration on the voters list and no person shall be eligible to vote if not listed on the electoral roll.
  5. The secrecy of the vote is a principle proclaimed by the Constitution in    Article 33 and that the Electoral Code as amended by Ordinance 2008 – 133 April 14th 2008. The lack of polling booth constituted a substantial defect likely to discredit the regularities of the election.
  6. There were actions showing well enough that in several polling stations in some regions of the country, voting was not conducted in conditions of freedom, equality and confidentiality as prescribed by the Constitution in Article 32 and in compliance with the electoral laws Thus , the electoral process that took place in these various zones were vitiated by obvious irregularities likely to affect the sincerity of the poll and to  affect the results in the polling stations where they were  noted.

It was the Court’s decision that the requests of Gbagbo Laurent were admissible but partially founded;

The results of the poll in the departments of Bouake, Korhogo, Ferkessedougou, Katiola, Boundiali, Dabakala, Seguela,were canceled;

Mr. Gbagbo Laurent was proclaimed elected President of the Republic of Côte d’Ivoire;

 

5.0: USA

Bush v. Gore,

United States Supreme Court

531 U.S. 98 (2000)

The 2000 presidential election pitted United States Vice President Al Gore, a Democrat, against Texas Governor George W. Bush, a Republican. As the election results were counted, it became clear that the vote would be very close, and that the results in the state of Florida would decide the election. Bush was initially declared the winner by just a few hundred votes, a tiny margin in a state with millions of voters. However, reports of widespread problems with ballots (for instance, conflicting ballots that were designed so that people who thought they were voting for Gore ended up casting votes for another candidate) soon called the results into question.

Gore’s supporters sued the state of Florida for a recount. Bush’s supporters sued to prevent it. To make matters more complicated, Florida’s election laws set an unchangeable deadline for announcing the final results, so the recount had to be begun quickly if it was to be done at all. When the Florida Supreme Court decided in favor of Gore, and ordered the recount to be completed, Bush appealed to the U.S. Supreme Court.

On December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all “under-votes” (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court’s decision. The U.S. Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later.

The Court, in adjudicating the matter disposed of the following questions:

  • Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law?
  • Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?

Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by “later arbitrary and disparate treatment,” the per curiam opinion held 7-2 that

  1. The Florida Supreme Court’s scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county.
  2. Because of those and other procedural difficulties, the court held, 5 to 4, that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the “safe harbor” provided by 3 USC Section 5).
  3. Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount scheme was also unconstitutional because the Florida Supreme Court’s decision made new election law, which only the state legislature may do.
  4. Breyer and Souter (writing separately) agreed with the per curiam holding that the Florida Court’s recount scheme violated the Equal Protection Clause, but they dissented with respect to the remedy, believing that a constitutional recount could be fashioned. The held that time was insubstantial when constitutional rights were at stake.
  5. The Court ruled that no alternative method could be established within the time limits set by Title 3 of the United States Code (3 U.S.C.), § 5 (Determination of controversy as to appointment of electors), which is December 12. However, seven of the justices agreed that there was an Equal Protection Clause violation in using different standards of counting in different counties.[3] Three concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2 of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature.

 

6.0: UKRAINE

Yushchenko v. Central Election Commission

On October 31, presidential elections were held in Ukraine. According to the Central Election Commission (CEC), a second round was to be held on November 21 as none of the candidates had secured a majority vote. On November 21, voters cast their ballots in the second round of its presidential elections. According to the final results issued by the Central Election Commission, Prime Minister Viktor Yanukovych of the Regions of Ukraine secured 51.49% of the votes while Viktor Yushchenko of the Our Ukraine bloc secured 48.51% of the votes. The Central Election Commission officially announced that Viktor Yanukovych won the election. Viktor Yuschenko’s campaign team challenged the results in the Supreme Court on the ground that massive fraud denied Yuschenko victory in the election.

The petitioners applied to the Constitutional Court of Ukraine with a submission on the official interpretation of the provisions of articles 56.3.4, 64.1.2, 64.15 of the Law of Ukraine “On the elections of the President of Ukraine” (hereinafter – the Law) concerning the possibility of the participation in the pre-election campaign of the officials and other employees of the executive bodies, and the bodies of local self-government in free time as well as on the official interpretation of such legal terms as “individuals subordinate to them” and “the  place of employment”, used in article 64.15 of the Law.

The Constitutional Court of Ukraine in giving the official interpretation of the mentioned provisions of the Law, Held:

  1. The elections are one of the forms of direct democracy, the means of formation of state bodies and bodies of local self-government by the electoral corps. The Constitution has fixed the fundamentals of the electoral law, having established that the elections to these bodies are free and take place on the basis of general, equal and direct electoral right by way of secret ballot, and the voters are guaranteed the free will expression (article 71 of the Constitution).
  2. One of the stages of the electoral process is the pre-election campaign, the main objective of which is to form the will of the voters to vote for this or that candidate running for the position of the President of Ukraine. The pre-election campaign may be performed in any form and way, which do not contradict the Constitution and the laws of Ukraine (article 58.1 of the Law).
  3. The Law established certain restrictions as to conducting a pre-election campaign. In particular, according to article 64.1.2 of the Law, executive bodies and bodies of local self-government, their officials and officers are prohibited to participate in pre-election campaign. The mentioned prohibition is directed, firstly, towards the prevention of usage of the resource of these bodies during the campaign of this or that candidate for the position of the President of Ukraine, secondly, for making it impossible to press upon voters. Such prohibition is caused by the necessity to create conditions for free will expression of voters during the elections.
  4. According to the provisions of article 64.15 of the Law the candidates to the position of the President of Ukraine who hold offices, including those combined, in executive bodies, and bodies of local self-government, in state, municipal enterprises, in institutions, organizations, military units (formations), are prohibited to involve into the pre-election campaign or to use for any type of work related to the pre-election campaign individuals subordinated to them (at working time), the official transport, communications, equipment, premises, other objects and resources at the place of employment as well as to use service or professional meetings, personnel meetings for conducting pre-election campaign.
  5. Provisions of article 64.1.2 of the Law of Ukraine On the elections of the President of Ukraine” should be understood so that the officials of the executive bodies and bodies of local self-government are prohibited to participate in pre-electoral campaign in any time (working or leisure).
  6. Provisions of article 64.15 of the Law of Ukraine “On the elections of the President of Ukraine” are to be understood as follows:
  • candidates for the position of the President of Ukraine, which hold the offices, including those combined, in executive bodies and bodies of local self-government, in state, municipal enterprises, in institutions, organizations, military units (formations) do not have the right to involve at working as well as at leisure time the subordinate officials who work in executive bodies and bodies of local self-government for pre-electoral campaign, and at working time with the same purpose – all other subordinate persons who work in the mentioned bodies and subordinate persons including officials who work in state, municipal enterprises, in institutions, organizations, military units (formations);
  • candidates for the position of the President of Ukraine may not use at working and leisure time the official transport, communications, equipment, premises, other objects and resources at the working place as well as service or professional meetings, personnel meetings for conducting pre-election campaign;
  • “the place of employment” of candidates for the position of the President of Ukraine is a specific body of the executive power, body of local self-government, state, municipal enterprise, institution, organization, military unit (formation), in which they hold an office, including those combined;
  • “The subordinate persons” of the candidates to the position of the President of Ukraine at the place of employment are individuals who execute official (labor) duties in the executive body, body of local self-government, institution, organization or serve at the military unit (formation) and have the subordinate relations with these candidates.
  1. The provisions of article 56.3.4 of the Law of Ukraine “On the elections of the President of Ukraine” are to be understood as the grounds for the Central Election Commission to declare a warning to a candidate for the position of the President of Ukraine and to the party (bloc) which nominated him/her against committing by a candidate running for this position of acts prohibited by article 64.15 of the mentioned Law.

Annulling the 21 November vote, the judges ruled that the central election commission acted improperly by declaring PM Yanukovich the winner.

 

7.0: GHANA

Akufo-Addo v. Electoral Commission

In The Superior Court of Judicature

In The Matter Of a Petition Challenging the Validity of the Election of John Dramani Mahama as President of The Republic Of Ghana Pursuant To the Presidential Election Held On 7th And 8th December 2012

Ghana’s opposition New Patriotic Party (NPP) filed a petition at the Supreme Court challenging the Electoral Commission’s (EC) declaration of President John Mahama as the winner of the December 7 election.

The Electoral Commission gave the final figures as 5,574,761 for President Mahama to be announced the winner with 50.7 per cent of vote against 47.7 per cent of the NPP’s Nana Dankwa Akufo-Addo. The petitioner is challenging the integrity of the elections in December 2012. The New Patriotic Party (NPP) challenged the validity and credibility of the results declared by the Electoral Commission in favour of the National Democratic Congress (NDC) arguing that the process of verification of results by political parties was not transparent and that there were discrepancies between the total number of votes cast for presidential and parliamentary elections.

NPP said it had reasons to believe that rigging had taken place in some constituencies. The party had 28 days to petition the Supreme Court. The petition was filed by three leading members of the New Patriotic Party, (NPP) comprising the party’s presidential candidate for the 2012 elections, Nana Addo Dankwa Akufo-Addo, his running mate Dr. Mahamudu Bawumia and the party’s chairman, Jake Otanka Obetsebi-Lamptey who claimed that the election was rigged by the Electoral Commission in favor of President Mahama.

The petitioners have named President Mahama, the Electoral Commission and the Chairman of the Commission, Dr. Kwadwo Afari Gyan as respondents.

As at the date of this publication, the petition was yet to be heard and determined by the Supreme Court of Ghana.

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