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Kenya Law / Blog / Case Summary: Scope of The Supreme Court’s Jurisdiction In Determination Of Presidential Election Petitions: Mwananchi Friendly Version

Scope of The Supreme Court’s Jurisdiction In Determination Of Presidential Election Petitions: Mwananchi Friendly Version

Isaac Aluoch Polo Aluochier v Independent Electoral and Boundaries Commission & 19 Others [2013] eKLR

Supreme Court of Kenya

M. K Ibrahim & J. B Ojwang, SCJJ

Feb 27 & May 3, 2013

Reported by Teddy Musiga

What was the case about?

The Petitioner brought a case to the Supreme court 27 days before the March 4, 2013 General Elections where he challenged the validity of the nominations and approvals made by the Independent Electoral and Boundaries Commission (IEBC) in respect of the candidature for the Office of the President.

Article 260 of the Constitution of Kenya, 2010 provided a list of offices categorised as “state offices” and the occupants of those offices as “state officers”. The Elections Act also expressly prohibited “state officers” from being nominated to vie for elective positions by political parties before first resigning from the state offices. The petitioner therefore was asking the Supreme Court to determine whether the actions of the sponsoring Political Parties was in accordance with the law in their initial nominations of candidates who would at the time have been classified as State Officers under Article 260 of the Constitution of Kenya, 2010.

Why was a ruling delivered on Feb 27th and reasons delivered on May 3rd 2013?

Immediately when the matter was set for hearing, the respondents raised a preliminary objection on the grounds that the Supreme Court lacked jurisdiction to entertain the petition and further that the Constitution under Article 88(4) (e) had conferred exclusive responsibility for settling of nomination of disputes upon the IEBC (respondents) and therefore the nominations of Presidential election candidates was insulated from the Supreme Court’s jurisdiction and from the jurisdiction of any other courts.

Following the opposing positions at the preliminary stage of the petition, and the limited time available to court, there was an urgent need to deliver the ruling first then give reasons later to allow the process of the National General Elections to be conducted as planned.

Which Court can hear disputes arising out of the nomination of candidates to the office of the President?

By virtue of the Article 163(3), Article 140 of the Constitution and Supreme Court (Presidential Election Petition) Rules, 2013, jurisdiction (the power to hear and determine) presidential election petition was with the Supreme Court and was only to be invoked after the declaration of the outcome of the elections.

The Supreme Court had the powers to exercise exclusive original jurisdiction when dealing with issues as to the validity of the presidential election. Exclusive jurisdiction meant a court’s power to adjudicate an action or class of actions to the exclusion of all other courts.

The exercise of the original jurisdiction was to be attended with considerations of the public interest, justice and constitutional integrity and the court’s decision ought to have served the cause of upholding the purpose and intent of the Constitution.

What are some of the possible circumstances under which disputes arising out of a Presidential election can take?

Rule 12 of the Supreme Court (Presidential Election Petition) Rules, 2013 provided a variety of circumstances under which disputes arising out of a presidential election could be raised at the Supreme Court including those that had been raised by the petitioner. The said circumstances are as follows:

a)   the validity of the conduct of a presidential election;

b)   the validity of the qualification of a president-elect;

c)    the commission of an election offence as provided for under Part VI of the Elections Act;

d)   the validity of the nomination of a presidential candidate; or

e)    any other ground that the court deemed sufficient provided such ground shall not be frivolous, vexatious or scandalous.

Did the Petitioner’s case fall within any of the categories listed above?

Yes, the petitioner’s case fell within the “validity of the nomination of a presidential candidate” head. However, he could only come to the Supreme Court after the declaration of the election results. He therefore failed to give reasons why he chose to take the matter to court at a premature stage instead of waiting for the declaration of the presidential election results after which he could challenge the validity of the nomination of the said presidential candidate.

Did the earlier Supreme Court Advisory Opinion No. 2 of 2012(In the Matter of the Principle of Gender Representation in the National Assembly and Senate case) give indications as to the possible circumstances under which a Presidential election Petition could take?

Yes, as at the time the Supreme Court Advisory Opinion No. 2 of 2012 was delivered, it attempted to provide broad indications of situations in which a grievance may have been expressed in regard to presidential elections.

However, Article 163(8) of the Constitution required the Supreme Court to gazette rules for the exercise of its jurisdiction in the resolution of disputes arising out of Presidential elections. The same had been duly made – the Supreme Court (Presidential Election Petition) Rules 2013. Under Rule 12 thereof, the rules provided for the possible circumstances for lodging of the Presidential Election grievances as discussed earlier in this paper.

Was the Petitioner right to bring his case by following Supreme Court Advisory Opinion No. 2 of 2012 instead of the Supreme Court (Presidential Election) Rules.

No, the petitioner’s choice of following the broader principles in challenging a Presidential election as captured in the Advisory Opinion in the Gender case instead of following the formal rules of the Supreme Court was in departure from the legal principle and defeated his cause at the preliminary stage of the petition.

Whereas the prescribed Rules of the Supreme Court made by virtue of the Constitution constituted a directly operative code in specific terms, the Advisory Opinion was not similarly structured, and largely bore a broad principle, imbued with elements of ethos and spirit. It was therefore not right for a party to choose between the two bodies of law as a basis for lodging a claim. The prescribed Rules were for immediate and unexceptional application.

Why then was the petition dismissed?

Despite the Supreme Court having jurisdiction to hear and determine the matter and the petitioner raising a genuine claim, the petition was dismissed because it was brought to court at a premature stage.

The law – Supreme Court (Presidential Election Petition) Rules, 2013 had defined the time of the declaration of the Presidential election results as the operative moment in the exercise of that jurisdiction. Therefore, the span of the Court’s jurisdiction occasioned no injustice to the petitioner who was allowed under those Rules, 2013 to raise and canvass each of his current grievances.

The Supreme Court therefore lacked jurisdiction to entertain the petition in the circumstances.

Was the petition decided on its merits?

No, a preliminary objection was raised by the respondents (IEBC) on the grounds that the Supreme Court lacked jurisdiction to entertain the petition and further that the Constitution under Article 88(4)(e) had given exclusive responsibility for settling of nomination disputes upon the IEBC and thus the nominations of Presidential election candidates was insulated from the Supreme Court’s jurisdiction and from the jurisdiction of any other courts.

The matter was therefore dismissed on the basis of the preliminary objection raised.

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