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Paper presented at the Colloquium for the Selected Bench of the Judiciary Working Committee on Election Preparations,
Great Rift Valley Lodge, Naivasha,
23 April 2013

By The Hon. Justice (Prof.) J.B. Ojwang, Justice of the Supreme Court of Kenya

Content

A. INTRODUCTION

B. TYPES OF ELECTORAL DISPUTES

C. RECENT EXPERIENCE: THE PRESIDENTIAL ELECTION PETITION NO. 5 OF 2013

D. A UNIQUE ELECTION CASE IN KENYA’S NEW PHASE OF

CONSTITUTIONALISM

E. WHAT LESSON?   –  CONCLUSION

A. INTRODUCTION

Within the broad domain of litigation, there are civil disputes in a strict sense, as well as quasi-civil matters, which involve the State machinery in some major respect: for instance, where redress is sought on account of alleged violations of fundamental rights; or where State action is sought to be nullified or countermanded, in judicial review proceedings.

To those categories of action sui generis, we should add public-election disputes.  In such a case, the established State machinery has already conducted an election, but the citizen claims to have been damnified by improprieties perpetrated, or permitted by the public mechanisms. So the petitioner is seeking annulment of the election outcome, and a repeat of the electoral process.

What are the common scenarios leading to such litigation? What kinds of grievances are raised? What burdens and standards of proof are required? Is this a winner-take-all situation? In a broad sense, what principles should guide the Court?

B. TYPES OF ELECTORAL DISPUTE

It is plain that all election disputes raise questions at to the integrity of the electoral process, in one way or another: and in this sense, all have a common character.

However, the scale of elections differs – in the interests at stake; in the public significance; or in the constitutional dimensions. And no election is of bona fide interest only to the litigants; on the contrary, elections are of much more substantial interest to the voters and to the public at large.

A ward election involves rather limited numbers of voters, and its repercussions are essentially of a local character. However, at the level of principle, such an election is significant in every sense – as it reflects on the quality and the constitutional integrity of the mode of discharge of the electoral mandate, by the responsible entity. Similar reasoning will apply to the constituency election, or to the county election: save that, the larger the geographical base of the election, the more sensitive it may be, as it involves larger numbers of voters; and it may also be seen to affect diverse demographic, ethnic or localized interests which bear their special sensibilities.

There is one significant difference between elections at such restricted levels, on the one hand, and election for a national office – such as that of President and Deputy-President – on the other.  In the latter case, not only are the bases for sensitivity substantially enhanced, but direct questions of national interest, and of the discharge of fundamental constitutional functions, are involved. For instance, an issue regarding election to the Presidential office relates directly to the question whether the Kenyan State will be in a position to discharge the vital  functions of the Executive Branch. It means, a dispute relating to Presidential election is infinitely more sensitive: as it will affect the country’s standing in terms of the management of the State’s internal affairs, and will have a bearing on Kenya’s fulfilment of her international mandate.  At the level of the Presidency, therefore, there is an exceptional interest in the integrity and legitimacy of the election, both at home and abroad.

Since such electoral disputes will fall at the doors of the Judiciary, the Courts must not only take judicial notice of the foregoing realities, but go further and adopt general guidelines that embody fairness, practicality and legitimacy, for dealing with the differing election-dispute scenarios.

C. THE RECENT PRESIDENTIAL-ELECTION EXPERIENCE:  SUPREME COURT ELECTION PETITION NO. 5 OF 2013

This election petition, Raila Odinga v. The Independent Electoral and Boundaries Commission and Three Others, was the primary claim in a set of three separate petitions which were consolidated and resolved within its ambit.

In the aftermath of the national elections of 4 March 2013, and following the declaration of results of 9 March 2013, Mr. Odinga moved the Supreme Court in its exclusive original jurisdiction under Article 163 (3)(a) of the Constitution. He claimed that the Presidential election, in its conduct, failed to comply with the terms of the Constitution and the law, and so, ought to be annulled, with consequential orders for the reconvening of the process.

In essence, the petitioner’s allegations were as follows: no proper voters’ register had been maintained, and so no valid election could have taken place; the electronic-support system for results-transmission had crashed, and this removed the basis of verification of vote-tallies from the polling stations – so that the tally ultimately given was false; there were irregularities in the manual tallying of votes – and these led to advantages accruing to the third respondent, the petitioner thereby being disadvantaged; the tallying of votes at the national level was perversely and wrongfully conducted, as the petitioner’s agents were not accorded the best opportunity to make a verification.

Such contentions, taken at face value, would certainly bring into question the transparency and integrity of the process of arriving at the election results declared on 9 March 2013.

However, as the contentions related to matters of a clear-cut nature, they readily lent themselves to statistical evidence, such as would ascertain that the declared President-elect had not obtained the exact number of votes credited to him. It was also necessary to show that the shortfalls associated with the electoral process, played out only against the petitioner, and not in any respect, against the declared winner. The question of evidence was most important in this case, and, from this experience, it will probably be the case that, for all elections such as might be the subject of petitions before the superior Courts, failure of definitive evidence may be the main reason for orders of dismissal.

But in Petition No. 5 of 2013, there were, besides, questions of law which led to the dismissal of the case. By the Court’s finding, the petitioner’s perception of the question of vote-tally transmission technology, during the electoral process, could not stand the test of scrutiny. Even though the role of such technology had been provided for, the Electoral and Boundaries Commission remained empowered to design it, and phase it in, as appropriate, on the basis of discretion. It is to be considered, of course, that such a discretion was to be exercised in good faith, and in the public interest. But, such scope for the exercise of discretion is to be taken to entail that, if the application of the technology proved unsuccessful, the electoral body would have to take such other course as would still ensure the discharge of the constitutional mandate, to conduct the elections. The manual system of management was the agency’s fall-back position.

In these circumstances, the failure of the electronic technology on election day could not be taken to have been a factor favouring, or intended to favour the declared President-elect, at the expense of the petitioner.

Yet another question of law in respect of which the petitioner’s case falls, was as to the character and identity of the voter register. Was this register, by law, to be no more than a single document? A single document integrally linked to the electronic scheme – the Biometric Voter Register?

The right to vote, which is a constitutional right for all adult citizens, is not limited to persons with biometric features – and there are numbers of citizens, spread all over the country, not endowed with those features. Hence, there was a duty resting on the Independent Electoral and Boundaries Commission to compile a record of voters not having biometric features. It becomes clear, immediately, that we are dealing with not just one record as the Principal Register of Voters. Although the IEBC ought, in principle, to continue consolidating its registration modalities, this is for the future; for, as regards the past Presidential election, the concept of the voter register purveyed by the petitioner was not the right one, in law.

The Judgment rendered on 16 April 2013 also dealt with the conduct of political-party agents at the vote-tallying centre, as well as with the averments imputing irregularity in the tallying process.

The main thrust of the Supreme Court’s finding was that, even though the petitioners had properly moved the Court, in a quest for a statement as to legality, they failed to deliver a firm-enough case to warrant the annulment of the declared Presidential-election results.

D. UNIQUE ELECTION CASE IN KENYA’S NEW PHASE OF CONSTITUTIONALISM

The Supreme Court has elucidated the significance of the first Presidential election petition under the new Constitution, at paragraph 177 of the Judgment, thus:

“This may not be the most complex case, in terms of the relevant facts and the applicable law; but it is of the greatest importance for the following reasons:  (i) it is the first landmark case bearing on the early steps to consolidate and set in motion the gains of a progressive and unique Constitution, which was promulgated on 27 October 2010; (ii) since the promulgation of the Constitution, its ‘non-majoritarian’ elements, such as the Judiciary and the Independent Commissions, have assumed their special roles; but the ‘majoritarian’ elements, in the form of a popularly elected Legislature and Executive, were still in abeyance; (iii) transition from the little-regulated Executive set-up of the earlier period, to a new one subject to the established constitutional limitations, is a fateful process which the people must effect through the electoral process; (iv) the cardinal role of implementation of the principle and terms of the Constitution of Kenya, 2010 rests with the Executive Branch, acting through laws emanating from the Legislature, and subject to the constraints of the Constitution itself and the law, as superintended by the Judiciary; and hence the electoral process which now sets the Presidency afoot, in the provision of national leadership, is all-important to the people of Kenya; (v) although the Supreme Court has been in place for about one year-and-a-half, charged with the obligation to ‘assert the supremacy of the Constitution and the sovereignty of the people of Kenya [The Supreme Court Act, 2011 (Act No. 7 of 2011), Section 3(a)], it is only now that it has the … opportunity to consider the vital question as to the integrity of a Presidential election, and, therefore, the scope for the new Constitution to anchor its processes on the operations of a lawful Executive Branch; and (vi), this is the first test of the scope available to this Supreme Court, to administer law and justice in relation to a matter of the expression of the popular will – election of the President. This Judgment, therefore, may be viewed as a baseline for the Supreme Court’s perception of matters political, as these interplay with the progressive terms of the new Constitution.    It is clear that this Judgment, just as it is important to all Kenyans in political terms, is no less important to the Court itself, in terms of the evolution of jurisprudence in the domain of public affairs. It is particularly so, in the light of Section 3(c) of the Supreme Court Act, which vests in this Court the obligation to ‘develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth’.”

E. WHAT LESSONS? –  CONCLUSION

Although the Supreme Court’s experience in the recent case relates to a distinctly national constitutional office, and so it involves certain facts and circumstances suitable for judicial notice, nonetheless, it bears lessons which the election Court in all other situations should generally take into account.

Firstly, shortfalls in electronic mechanisms, even though such technology would greatly enhance the quality of the electoral process, are not by themselves a reason to nullify an election, on the ground that the manual system resorted to was not good enough.

Secondly, the Court should carefully consider the real impact of any alleged irregularity – especially irregularity attributed solely to the public body entrusted with the conduct of elections – upon the voting outcome. If such irregularity has had no – or minimal – effect, then there is, in general, no case for annulling the election result. It must be considered, in this regard, that an election is not a process designed for the benefit of the petitioner, but is a much more broad-based exercise that seeks to serve the public interest in the first place.

Thirdly, the case for process-legitimacy, assured by transparency and by the involvement of party agents, must be subject to orderly conduct on the part of these agents; and ultimately, responsibility for the maintenance of such order lies with the public agency in charge of the electoral process.

Fourthly, as public elections are for representative offices running in relatively short cycles, time is always of the essence in the resolution of any disputes. It is, thus, in the public interest that the election Court should remain firmly in charge of the essential steps in the run-up to hearing day; and the Court should hold the parties under obligation to manage their evidence, and to conduct their cases, in a disciplined, time-conscious, and responsible manner.

The Supreme Court also considered the issue of burden of proof, in election cases. The Court’s position in this matter was that, in general, an election dispute is a special category of civil dispute, in which the general burden of proof is on a level higher than the balance of probability, though falling below the level of beyond-reasonable-doubt.

Such is not the position as regards intended statistical thresholds, if there be such. In such cases, the specified or implied statistical levels are to be attained, in the proof.

Besides, in situations in which a criminal offence is imputed, in connexion with normal proof in an election case, proof of the alleged offence is to be upon a threshold beyond reasonable doubt.

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