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This plain language analysis has been prepared by the National Council for Law Reporting for better public understanding of the decision.

 

Raila Odinga & 5 others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR Supreme Court of Kenya WM Mutunga CJ & PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu SCJJ
March 30, 2013 & April 16, 2013
Editor: Michael M. Murungi. Law Reporters: Monica Achode, Emma Kinya, Teddy Musiga

What is an election petition?

An election petition is the formal procedure of challenging the process or the result of an electoral contest in court. It is an application to an election court challenging the validity of the process, the outcome or any aspect of an election. It may be filed by a candidate or indeed any person who wishes to challenge any aspect of an electoral process.

In the Constitution of Kenya 2010, electoral posts refer to presidential, parliamentary, governor (gubernatorial) or county elections and includes a by-election.

An election petition is not an ordinary legal dispute between individuals. Though it may involve a few parties, is treated as a contest in which the interests and rights of the voters are concerned and quite apart from the laws governing other kinds of legal disputes, special laws of procedure and substance apply to election petitions.

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.

Regarding the duty of giving evidence (burden of proof) and the degree to which the petitioner is required to prove his case (the standard of proof), the Supreme Court in this case stated that an electoral cause is established much in the same way as an ordinary suit between individuals (a civil cause) where the legal burden rests on the petitioner, but, depending on the effectiveness with which he discharges this burden, the evidential burden keeps shifting. Ultimately, it falls to the court to determine whether a firm and unanswered case has been made.

 

What is a presidential election petition?

A presidential election petition is the formal process of challenging the process, the outcome or any aspect of the election of a President in accordance with Articles 136, 139 (1) (b) and 146 (2) (b) of the Constitution of Kenya, 2010.

 

Which court can hear a presidential election petition?

By virtue of Article 163 (3) of the Constitution of Kenya, 2010, jurisdiction (the power to hear and determine) a presidential election petition is vested in the Supreme Court. This jurisdiction of the Supreme Court is both exclusive, meaning that no other court has the power to hear such a dispute, and original, meaning that the dispute is filed in the Supreme Court in the first instance as opposed to appellate jurisdiction, where a court would hear a dispute on appeal from another court.

 

Did the decision of the Supreme Court in this petition affect the election of parliamentary, governor and county candidates?

In its decision, the Supreme Court appreciated the need for it to not inquire into and decide on matters that are not within its powers – particularly matters relating to parliamentary, governor and county elections, which by law are the subject of other courts. The Court therefore observed that the annulment of a Presidential election would not necessarily invalidate the entire general election and the annulment of a Presidential election need not occasion a constitutional crisis, as the authority to declare a Presidential election invalid is granted by the Constitution itself.

Conversely, the Court stated that a petition in an election petition is therefore 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 as the Court will only grant orders specific to the Presidential election.

 

Who were the parties to this presidential election petition?

A total of three petitions challenging the election of the president were filed by different parties on different dates. All three were consolidated and heard together.

The parties to the first petition (petition no. 3/2013) were Mr. Moses Kiarie Kuria, Mr. Denis Njue Itumbi and Ms. Florence Jemimah Sergon as the petitioners and Mr. Ahmed Isaac Hassan, the Chair of the Independent Electoral and Boundaries Commission (IEBC), and the Independent Electoral and Boundaries Commission as the respondents.

The parties to the second petition (petition no. 4/2013) were Ms. Gladwell Wathoni Otieno and Mr. Zahid Rajan as the petitioners and Mr. Isaac Hassan, Mr. Uhuru Kenyatta, Mr. William Ruto, the president-elect and deputy president-elect respectively, as the respondents

The parties to the third petition (petition no. 5/2013) were Mr. Raila Amolo Odinga, one of the presidential candidates, as the petitioner and the Independent Electoral and Boundaries Commission, Mr. Ahmed Isaac Hassan, Mr. Uhuru Muigai Kenyatta and Mr. William Samoei Ruto as the respondents.

The Court designated this third petition to be the pilot/main petition

 

How was this presidential election petition different from previous presidential election petitions?

Firstly, this was the first general election under the Constitution of Kenya, 2010. In that regard therefore, this election petition was unique as it was filed under a new constitutional and legal regime, and the first election petition to be filed, heard and decided by the Supreme Court established in the new constitution.

Secondly, this may have been the first election petition to be heard and determined on its own merit. Previous petitions challenging the election of a president have been almost exclusively decided on technicalities of law and procedure – such as the failure to serve the court papers on the respondent in time.

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.

Incidentally, there is a similar petition before the Supreme Court in Ghana in which the petitioner is challenging the integrity of the elections in December 2012. The Ghanaian case before the Supreme Court raises issues that have a striking similarity to the dispute in Kenya. In Ghana, 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.

 

Why was this presidential election petition decided within such a short time frame?

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.

On the basis of this provision of the Constitution, and on the basis of the powers conferred upon it by article (163)(8) of the Constitution which mandated the Supreme Court to make rules for the exercise of its jurisdiction; and further on the basis of section 31 regarding the rules of the Supreme Court Act, the Court made and published The Supreme Court (Presidential Election Petition) Rules 2013. These Rules were meant to operationalize Article 140 of the Constitution.

As the Court itself noted, the 14 days period within which the Court must hear and determine an election petition was to start running immediately a party filed a petition. This timeline was constitutional and not negotiable.

Under the Supreme Court (Presidential Election Petition) 2013, rules 6, a petition challenging the election of the President-elect was to be filed in Court within seven days after the date of the declaration of the results of the presidential election.

In one of the rulings delivered by the Court in the course of the hearing of the petition, the Court set out the following as the milestones and timelines to be observed within the 14-day period:

• Presidential election petition to be filed within seven days after the declaration of the presidential election and the Supreme Court to hear the petition within fourteen days after filing of the petition. The fourteen days begin running immediately after filing the petition.

• Petitioner should serve the respondent within three days after filing the petition.

• Respondents to file their response within three days after filing of the petition.

• Pre-trial conference to be held nine days after filing of the petition.

• The Court is also allocated three days to familiarize itself with the pleadings before scheduling the pre-trial conference.

• The hearing and determination of the petition must happen within 14 days of filing it.

The Court also observed that whereas the electoral process had led to the declaration of a winner, the president-elect could not assume 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 serve public interest. The expeditious resolution of this dispute was therefore all-important”.

In the run-up to the final decision, the Court made some rulings? What were these about?

The Court had dismissed two applications in rulings made during the pre-trial conference. One of these was for an order of production of certain documents; the other was in respect of a Notice to Produce a marked voter register found at the numerous polling stations across the country. The Court also made an order to exclude from the proceedings a further affidavit filed by Raila Odinga. The Court’s decision was based on its finding that the further affidavit was a disguised attempt to introduce new material well after the filing of the petition, which would have been contrary to the time-bound and disciplined trial process required under the Constitution.

 

Why did the Supreme Court give the findings first and then gave the reasons for its findings on a later date?

It is normal practice for courts, especially when dealing with matters on which an immediate decision on the findings is essential, to give its findings first and to reserve a later date for giving the reasoning that led to the findings.

The Supreme Court (Presidential Election Petition) Rules, 2013 Rule 23 sub rule (1) allows the Supreme Court upon the determination of a petition at the close of a hearing to give its decision but reserve its reasons for the decision to a later date. Sub rule (2) states that where the Court reserves reasons for its decision under sub-rule (1), the Court shall give a summary of the decision and the period within which it shall give the reasons.

After hearing the arguments from both sides, the court had deliberated over the petition and reached a unanimous decision on all the issues that had been set for determination. The unanimous findings of the Court were read in open court by Dr. Willy Mutunga, the Chief Justice and President of the Court, on the 30th of March 2013. At that time, the Chief Justice stated that the detailed judgment containing the reasons for the decision would be issued two weeks later, and this was done on April 16, 2013.

The Chief Justice stated that the decision would be made available to the public in booklet published by the National Council for Law Reporting while the Judicial Training Institute would disseminate it through public forums.

 

What Was The Role of the Attorney General as Amicus Curiae?

The office of the Attorney General (AG) is established under Article 156 of the Constitution of Kenya, 2010. Article 156(4) established the AG as the principal advisor to the Government and gives the AG the authority to represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings. Article 156(5) gives the AG the power, with the permission of the court, authority to appear as amicus curiae (a legal Latin term meaning a friend of the court) in any civil proceedings to which the Government is not a party.

The reasoning behind the joining of the petition by the Attorney General as amicus curiae was spelt out by the Supreme Court as:

• As the Chief Officer of the State Law Office he was the custodian of the legal instruments of the Executive Arm of Government and the recognized advisor of the state in matters of public interest.

• His office was the main player in the performance of the Executive’s role vis-à-vis the operationalization of the Constitution.

• The Constitution had expressly provided that in certain instances, the Attorney General may obtain the Court’s permission to appear as amicus curiae.

• The Court, which was the custodian of the rules of validity, propriety and fair play under the Constitution and the law, remained in charge in regulating such precise role as the Attorney General may play if admitted as amicus curiae.

• Admitting the Attorney General to such a role would not have presented any prejudice to either the scope of the court’s authority or the best interests of the parties.

• It would have been improper to exclude the Attorney General from the role of amicus curiae in the petition.

 

Why were the proceedings broadcast live on TV unlike previous petitions or other cases?

Other than certain proceedings that are required by law to be conducted with certain restrictions on publicity, such as proceedings involving children, it is the law and the practice to have all court proceedings conducted in open court. However, courts are empowered to enforce certain restrictions on public and media access to proceedings in order to ensure safety, security and the orderly conduct of court business.

The unprecedented live media coverage of this election petition satisfied a compelling public interest in the proceedings and also set a new standard in the openness and transparency of the hearings of the country’s highest judicial body.

 

What were the main issues raised in the petition?

The first petition contested the inclusion of rejected votes in the final tally which, it was argued, 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 IEBC, with regard to the presidential election. On the overall, it was argued that the election was not conducted in accordance with the Constitution, the Elections Act, 2011 and the applicable Regulations.

The third petition challenged the legality of IEBC’s declaration of Uhuru Kenyatta and William Ruto as President-elect and Deputy President-elect respectively.

In the consolidated suit it was alleged that the electoral process was so fundamentally flawed that it was impossible to ascertain whether the presidential results declared were lawful.

 

Who bears the duty of giving evidence and to what degree is the petitioner is required to prove his case?

In law, the duty of giving evidence is known as the burden of proof, whereas the degree of to which the claim is required to be proved is known as the standard of proof.

The general rule of law is that in criminal cases, except in certain well-defined exceptions, the burden of proof is on the prosecution, and the standard of proof is proof beyond reasonable doubt. In ordinary cases between individuals or persons (civil cases) the burden of proof is usually on the person who files the claim and the standard of proof is proof on a balance of probabilities. Proof on a balance of probabilities is regarded as being comparatively less in degree to proof beyond reasonable doubt.

In this case, the Supreme Court considered the special nature of an election petition and made the following observations on the burden of proof and standard of proof in such cases:

• An electoral dispute is established much in the same way as a civil cause where the legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the Court to determine whether a firm and unanswered case has been made.

• The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt – save that this would not affect the normal standards where criminal charges linked to an election, are 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 bearing the legal burden of proof must discharge it beyond any reasonable doubt.

• There is a long-standing common law approach in respect of alleged irregularity in the acts of public bodies that all acts are presumed to have been done rightly and regularly. Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondent bears the burden of proving the contrary. So, the petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.

 

One of the controversial issues in the election was whether in calculating the total amount of votes, the IEBC should have included ‘rejected votes’. How did the Court decide on this issue?

Indeed, this was one of the contested issues and in its decision, the Court looked at the wording of the Constitution, the Elections Act and its regulations as well as the decisions of other Courts, and made the following observations:

Neither the Constitution nor the Elections Act, 2011 defines the term “rejected votes”. The Elections (General) Regulations, 2012, while providing for the “spoilt ballot paper” and the “disputed vote”, does not define the term “rejected vote.

The interpretation section of the Elections Act states that ‘ballot paper’ “means a paper used to record the choice made by a voter and shall include an electronic version of a ballot paper or its equivalent for purposes of electronic voting”.

When the expression ‘rejected ballot paper’ is considered alongside the term ‘spoilt ballot paper’, then by virtue of regulation 71 of the Elections (General) Regulations, 2012, this would be a ballot paper which has been dealt with by the voter in such a manner it cannot be conveniently used as a ballot paper. The regulation provides that such a ballot paper is to be surrendered to the presiding officer and a new one issued in its place, and the spoilt paper is to be cancelled. Therefore, it was clear that in law, a ‘spoilt ballot paper’ will not find its way into a ballot box and so it does not count as a vote.

Different countries refer to votes cast by different terms, and assign differing consequences to the contrasting categories of votes. In Ghana, Cyprus and Portugal, the winner in an election is determined only by the valid votes cast. Under the Constitution of Seychelles, the broad term “votes cast”, just as in Kenya, has been adopted. The most striking example of a departure from this line of reasoning is in the Constitution of Croatia, which provides that “the President shall be elected by a majority of all electors who voted”, thus in the tallying of votes, invalid votes are taken into account.

The Regulations made by IEBC have no provision for “rejected votes”, though they provide for “rejected ballot papers”, “spoilt ballot papers”, and “disputed votes”. It is clear that “spoilt ballot papers” are those which are not placed in the ballot box, but are cancelled and replaced where necessary, by the presiding officer at the polling station.

This differs from the “rejected ballot papers” which, although placed in the ballot-box, are subsequently declared invalid, on account of certain factors specified in the election regulations – such as fraud, duplicity of marking, and related shortfalls.

No law and no Regulation brings out any distinction between “vote” and “ballot paper”, even though both the Elections Act and its regulations have used these terms interchangeably. From this, the court drew the conclusion that neither the legislature, nor IEBC, had attached any significance to the possibility of differing meanings; which led the Court to the conclusion that a ballot paper marked and inserted into the ballot-box, has consistently been perceived as a vote; thus, the ballot paper marked and inserted into the ballot-box will be either a valid vote or a rejected vote.

Since, in principle, the properly marked ballot paper, or the vote, counts in favour of the intended candidate, this is the valid vote; but the non-compliant ballot paper, or vote, will not count in the tally of any candidate; it is not only rejected, but is invalid, and confers no electoral advantage upon any candidate. In that sense, the rejected vote is void.

At this point, the Court posed to itself the all-important question: why should such a vote, or ballot paper which is incapable of conferring upon any candidate a numerical advantage, be made the basis of computing percentage accumulations of votes, so as to ascertain that one or the other candidate attained the threshold of 50% + 1 – and so such a candidate should be declared the outright winner of the Presidential election, and there should be no run-off election?

In answering this question, the Court arrived at an interpretation of the term ‘votes cast’ in Article 138(4) of the Constitution as referring only to valid votes cast, and not including ballot papers or votes cast but which are later rejected for non-compliance with the law. The Court arrived at this interpretation after considering:

• The mandate of the Judiciary to interpret the Constitution in a manner that ‘contributes to good governance’ [Article 259(1)(d)]

• The duty to interpret the Constitution in a manner promotes its purposes and principles, advances the rule of law and the Bill of Rights and permits the development of the law [Article 259]; and

• The progressive character of the Constitution.

 

What did the court find on the tallying of the votes?

The Court found that the tallying of votes at the National Tallying Centre was done according to the law, and the relocation of political party agents did not undermine the credibility of the tallying, nor provide a good basis for annulling the outcome of the presidential election. The Court found that there was no evidence to support the allegations of manipulation and violation of the law on the part of the IEBC with regard to the tallying of votes.

 

What was the decision of the Court with regard to the accuracy and credibility of voter register?

On this issue, the Court observed that it was to be careful not to make orders that would bring a conflict between its jurisdiction and that of other Courts – such as the High Court and the magistrate’s courts which had the jurisdiction to hear electoral disputes for other positions other than the presidency, all of which used the same voter register. The Supreme Court would therefore only inquire into any allegations of voter-registration malpractices, where such were said to affect the validity of a Presidential election.

Ultimately, the Court found that only the Principal Register of Voters was used. The Principal Register is a combination of several parts prepared to cater for diverse groups of electors. However, the Principal Register of voters has three components namely; the Biometric Voter Register, Special register and the Green book, otherwise known as the Primary Reference Book, which is done by hand.

The court found no major anomalies between the number of registered voters and the total tally in the declaration of the presidential election results made by IEBC. The anomalies noted were not substantial enough to affect the credibility of the electoral process, and besides, no credible evidence was adduced to show that such irregularities were premeditated and introduced by IEBC for the purpose of causing prejudice to any particular candidate.

The court concluded that the voter registration process was, on the whole, transparent, accurate, and verifiable; and the voter register compiled from this process did serve to facilitate the conduct of free, fair and transparent elections.

 

What is the Special Register of Voters?

The special register is created to provide for persons whose features could not be captured by the Biometric Voter Registration (BVR) device. Specifically, it is designed for persons with disabilities. The special register is aimed at ensuring that citizens of all abilities are included in the register.

 

What did the Court find with regard to the IEBC’s use of an electronic system for the tallying and transmission of results and its later decision to resort to a manual tallying system?

The Court stated that the IEBC was entitled to resort to the use of the manual tallying system as the constitution and the electoral laws specifically gave IEBC the discretion to either work with a full electronic system or manual system. The court recognised that due to the inherent failing of the electronic systems and the fact that the manual system had not been faulted as being erroneous, the computation could not be challenged. The Court observed that after the failure of the electronic results transmission system, there was no option left for the IEBC but to revert to the manual electoral system.

 

What did the Court say about the procurement of the technology by the IEBC?

The Court was concerned that the failure of two technologies, namely the Electronic Voter Identification (EVID) and the Results Transmission System (RTS), may have arisen “from the misunderstandings and squabbles among IEBC members during the procurement process – squabbles which occasioned the failure to assess the integrity of the technologies in good time”. The Court further observed that it was “likely” that the process of acquiring the technologies “was marked by competing interests involving impropriety, or even criminality” and it recommended that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects.

 

What was the final determination of the Court?

On the basis of these findings, the Court had ruled that:

• Uhuru Kenyatta and William Ruto had been validly elected and declared as President-Elect and Deputy President-Elect respectively;

• The presidential election had been conducted in a free, fair, transparent and credible manner in compliance with the constitution and the law;

• Rejected votes ought not to have been included in calculating the final tallies in favour of each presidential candidate;

• The Court had no jurisdiction to declare a recomputation of percentages by the Chairman of the IEBC;

• Each party involved in the election petition would meet its own costs.

 

What would have happened if the Court had found that the presidential election was invalid?

Indeed, the Supreme Court had occasion to give its opinion on this issue, upon a question framed for it by the Attorney-General: “Does the fresh election anticipated by Article 140(3) of the Constitution mean an entirely new Presidential election (including the nomination process), or does [it] mean a similar election as that anticipated under Article 138(5) and (7) – with the same candidates as in the earlier poll?”

On this, the Court made the following observations:

• Clearly, a fresh election under Article 140(3) is triggered by the invalidation of the election of the declared President-elect, by the Supreme Court, following a successful petition against such election. Since such a fresh election is based on the invalidation of the election, it can only involve candidates who participated in the original election. In that case, there will be no basis for a fresh nomination of candidates for the resultant electoral contest.

• However, where the candidates, or a candidate who took part in the original election, dies or abandons the electoral contest before the scheduled date: then the provisions of Article 138(1)(b) would become applicable, and fresh nominations would follow.

• The answer to the question whether the “fresh election” contemplated under Article 140(3) bear the same meaning as the one contemplated under Article 138(5) and (7) depends on the nature of the petition that invalidated the original election. If the petitioner was only one of the candidates, and who had taken the second position in vote-tally to the President-elect, then the “fresh election” will, in law, be confined to the petitioner and the President-elect. All the remaining candidates who did not contest the election of the President-elect, will be assumed to have either conceded defeat, or acquiesced in the results as declared by IEBC; and such candidates may not participate in the “fresh election.”

• As this was the situation in this case, if Court were to invalidate the election of Uhuru Kenyatta and William Ruto, only Raila Odinga would participate as a contestant in the “fresh election” against the President-elect and the candidate who received the most votes in the fresh election would be declared elected as President.

• In a case where a petition challenging the President-elect is filed by more than one candidate who had participated in the original election and the petition succeeded, the only candidates in the fresh election would be the petitioners as well as the declared President-elect whose election had been annulled.

• In a case where the election of a declared President-elect is annulled following the petition of a person who was not a candidate in the original election, then each of the Presidential-election candidates in the original election would be entitled to participate in the “fresh election” – and no fresh nominations would be required.

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