Pre-election Dispute Management: Between Judicial And Administrative Dispute Management Mechanisms
Prepared and published by The Judiciary Working Committee on Election Preparations*
*The Judiciary Working Committee on Election Preparations
- The Hon. Mr. Justice Mohammed Ibrahim – Judge of the Supreme Court
-The Hon. Justice (Dr.) Smokin Wanjala – Judge of the Supreme Court
-The Hon. Mr. Justice Paul Kihara Kariuki - Judge of Appeal and Director, Judiciary Training Institute
-The Hon. Mr. Justice David Maraga – Judge of Appeal
-The Hon. Mr. Justice A Mbogholi-Msagha, Principal Judge of the High Court.
-The Hon. Lady Justice Helen Omondi – Judge of the High Court
-The Hon. Mr. Justice David Majanja - Judge of the High Court
-The Hon. Roseyln Oganyo, Senior Principal Magistrate
- The Hon. Lilian Arika, Principal Magistrate.
Terms of Reference
- To advise the Judiciary on administrative arrangements and measures for the efficient disposal of election-related disputes.
- To develop and implement, in conjunction with the Judiciary Training Institute, a training programme for the efficient and effective management of election disputes for judicial officers and support staff.
- To develop and design a system for monitoring and evaluating the management and administration of election-related disputes in court.
- To liaise and coordinate with stakeholders to ensure efficient, effective and timely resolution of election related disputes and offences.
- To advise the Judiciary on the information that needs to be developed and disseminated to the public on the avenues open to it to pursue electoral disputes and the approaches that will be employed.
Electoral Dispute Resolution is a critical component in the electoral cycle and the effectiveness of lack of thereof of judicial and administrative mechanisms established to adjudicate electoral disputes impacts directly upon the extent to which elections are considered free and fair. Efficient and effectual EDR mechanisms are at the core of delivery of peaceful and credible elections and must be able to effectively deal with the challenges that arise at any stage in the electoral cycle.
An election is not a single event or period (considering that by-elections regularly occur between official general election periods) but rather a continuous process spanning from the establishment of the electoral management body, to party nominations, to the campaign period, through the election date and announcement of results and the resolution of electoral disputes. Conflicts and disputes emerge at all stages of the electoral cycle and judicial and administrative EDR mechanisms have been established and mandated to deal with these challenges across the electoral process as well as in regard to the various tiers of electoral units.
Traditionally, focus has tended to centre on EDR in regard to the judicial consideration of election petitions. It is however increasingly recognised that the resolution of disputes that occur before the actual election significantly impacts not only on the overall character of the election but also on the nature of disputes that form the basis of election petitions. Considering the expected increase in the volume of election petitions to be handled by the courts in the 2013 election due to the new devolved system of governance and the limited capacity of the High Court which is mandated to deal with most election petitions, it is even more important that pre-election disputes are effectively handled in order to alleviate subsequent litigation via election petitions.
This is the reason why the Working Committee established by the Chief Justice has been interacting extensively with the administrative EDR mechanisms and other stakeholders to ensure that statutes, rules, procedures and regulations in regard to pre-election dispute resolution are rationalized and harmonized. It is in recognition of the mutually constructive relationship between these structures that such engagement is being carried out. Though these efforts bode well for the handling of election disputes at 2013 general election, significant challenges remain; those in regard to pre-election dispute resolution will be considered below.
2. Legislative Framework for Pre–Election Dispute Resolution
The legislative framework for pre-election dispute resolution in Kenya is primarily set out in the Constitution, the Election Act, the Independent Electoral and Boundaries Commission Act, and the Political Parties Act. Pre-Election disputes can be placed in five general and overlapping categories; disputes specifically within and between political parties; electoral offences and illegal practices; voter registration disputes; disputes arising from the nomination of candidates; disputes relating the violation of the Code of Electoral Conduct.
Disputes within and between political parties are mainly considered under the Political Parties Act. These relate to disputes concerning the registration, funding and regulation of political parties and more particularly disputes between members of a political party; between political parties; between an independent candidate and a political party; and between coalition partners. Electoral Offences and Illegal Practices are primarily contained under Part VI of the Election Act; sections 56-73 contain a wide raft of offences and fines and punishments thereto including, inter alia, offences relating to the register of voters and voters cards; maintenance of secrecy at elections; multiple registrations as a voter; offences during voting; offences by members and staff of the IEBC; personation, treating, bribery and undue influence; use of force or violence during the election period; use of security organs and public resources; and a range of illegal practices.
In regard to voter registration, Art. 83 of the Constitution contains the requirements for registration as a voter and provides that any administrative arrangement for the registration of voters must be designed to facilitate, and not deny, an eligible citizen the right to vote. Affirming the right to vote, Part 2 of the Election Act relates to the registration of voters and the determination of questions concerning registration. Disputes in this regard relate to the maintenance of the Principal Register of Voters, inspection of the same by members of the public, the rectification and transfer of a voter’s registration from one electoral area to another, and the disqualification of a person from being registered as a voter. Significant disputes in regard to the validity and maintenance of central and devolved voters registers have in the past been the cause of both pre-and post election disputes and failure to adhere to the relevant legal provisions in this regard could result in the filing of challenges prior to the 2013 General Election.
Under Section 1 of the Election Act, ‘nomination’ means the submission to the IEBC by the relevant political party of the name of a candidate to contest for an elected position. The Constitution (Art. 137 and 180) and the Election Act (particularly sections 13 and 22-44) provide the criteria for nomination to various electoral offices. Importantly, Section 13 requires that nomination by political parties be undertaken at least forty-five days before a general election and in accordance with the party’s constitution and nomination rules. Art. 91 of the Constitution and Sections 6(2)(e) and 21(1)(b) of the Political Parties Act require that a political party undertakes and promotes a free and fair nomination process in accordance with the party’s nomination and election rules. Pre-election disputes can emerge from the alleged breach of the above-mentioned provisions both in regard to the internal processes within political parties and regard to the validity of nominations submitted to the IEBC.
Concerning disputes relating the violation of the Code of Electoral Conduct, Art. 84 of the Constitution and section 51 and 110 of the Election Act require in every election that all candidates and all political parties comply with the Electoral Code of Conduct as prescribed by the IEBC and contained in the Second Schedule to the Election Act. Under Section 110 failure to subscribe to the Electoral Code of Conduct or any contravention of the same are considered an offence. The Electoral Code of Conduct is wide and comprehensive requiring every political party, candidate, and leader, chief agent, agent or official of a referendum committee to promote the object of the code to enable free political campaigning and open public debate to take place in all parts of Kenya during an election period.
3.1 The Judiciary
The High Court possesses inherent jurisdiction to hear pre-election disputes by dint of Article 165 of the Constitution that confers unlimited original jurisdiction in criminal and civil matters to that court. More particularly, such disputes can be framed as a breach of political rights possessed by every citizen under Art. 38 of the Constitution; these include Inter alia, the right to form, or participate in forming, a political party; to participate in the activities of a political party; the right to free, fair and regular elections; to be registered as a voter; and to be a candidate for public office or office within a political party. Art. 23 and 165(3)(b) provides the High Court with jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; further, Art. 22 grants every person the right to institute court proceedings claiming that such rights have been denied, violated, infringed, or threatened. Under Art. 23(2), an Act of Parliament can devolve this original jurisdiction of the High Court to the Magistracy; in such proceedings the courts have wide discretion to grant ‘appropriate relief’ including a declaration of rights; an injunction; a conservatory order; a declaration as to the invalidity of any law; an order for compensation; and/or an order of judicial review.
Beyond this inherent jurisdiction of the courts to hear pre-election disputes, legislation specifically provides for the courts to hear and determine pre-election disputes. This jurisdiction is however shared with the various electoral dispute mechanisms established by the Constitution and by statute under Art 87 of the Constitution.
3.2 The IEBC
Art. 88. Of the Constitution establishes the Independent Electoral and Boundaries Commission and mandates the Commission to, inter alia, settle all electoral disputes excluding election petitions and disputes subsequent to the declaration of election results. This provision essentially grants the IEBC authority to deal with all pre-electoral disputes. These provisions are echoed in Section 74 of the Elections Act which provides thus: “Pursuant to Article 88(4)(e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of results.” Section 74(2) provides that such disputes must be determined within seven days of lodging the dispute with the Commission. The Commission is also mandated to regulate the process of nomination of candidates by political parties [Article 88(4)(d)] and to monitor the compliance with the legislation relating to nomination of candidates by parties [Article 88(4)(k)]. Section 107(2) of the Elections Act further empowers the Commission to prosecute any offences under the Elections Act and impose sanctions against a person who commits such offences as prescribed by the Act.
A Registration Officer has significant powers in regard to the registration of voters. The IEBC is currently drafting Rules of Procedure in regard to the prescribed form, manner and time lines for processing of a complaint by any person in regard to the voter’s register by the Registration Officer as required under Sections 11-12 of the Election Act. Section 12(2) further provides that an appeal from the decision of the Registration Officer shall lie in the prescribed manner to the Principal Magistrates Court on matters of fact and law and to the High Court on matters of law.
As mentioned above, Art. 84 of the Constitution demands that all candidates and political parties comply with the Electoral Code of Conduct. The Second Schedule of the Elections Act provides for two specific entities that have a role in the pre- election dispute resolution process; the Electoral Code of Conduct Enforcement Committee and the constituency Peace Committees. The Electoral Code of Conduct Committee is established under Section 15 of the Electoral Code of Conduct to address complaints received with regard to infringement of the provisions of the Electoral Code of Conduct. It is set up by the IEBC and comprises of not less than five members of the Commission with the chairperson being a person qualified to hold the office of Judge of the High Court. Section 15(3) requires every candidate, official and agent to acknowledge the authority of the Committee to enforce the provisions of the Code on behalf of the Commission; to ensure compliance with summons issued to the party, its candidates or representatives by the Committee; to cooperate in the official investigation of issues and allegations arising at election period; and to respect and comply with the orders issued by the Committee. The Committee can issue summons to the person, political party or referendum committee against whom a complaint has been received as having infringed the provisions of the Electoral Code and in its proceedings, the Committee is not be bound by the provisions of the Criminal Procedure Code or the Evidence Act; the Committee also hears appeals from the Peace Committees when not satisfactorily resolved at that level.
Under section 17 of the Electoral Code of Conduct, the IEBC is mandated to establish Peace Committees at in every constituency during an election and referendum period. The committees have the power to reconcile warring parties; mediate political disputes in the constituencies; liaise with government security agencies in the constituency and report suspected election malpractices; and report any violation of the Electoral Code to the Electoral Code of Conduct Committee for appropriate action.
The establishment of the peace committees is not mandatory and it remains to be seen whether the IEBC will adopt this mechanism to devolve the activities of the Code of Conduct Committee to the county, constituency and county assembly wards levels. Indeed, there are no provisions relating to the constitution of the Peace Committees. Further, there is no express provision in regard to appeals from the decision of the Code of Conduct Committee. There is currently a debate as to whether the decision of the Committee should be final (considering that the chairperson of the Committee is a person qualified to be appointed a Judge of the High Court this might be a reasonable proposition) or whether appeal should be made to the Magistracy or High Court on points of fact and/or law.
Section 110(6) of the Election Act provides that, subject to the provisions of the Criminal Procedure Code, the IEBC can designate any of its officers to conduct any prosecution for an offence under the Election Act and the Electoral Code of Conduct with this having, for that purpose, all the powers conferred upon a public prosecutor by the Constitution and the Criminal Procedure Code. Under section 7 of the Electoral Code of Conduct, where in the opinion of the IEBC, there has been an infringement of the Code by any relevant party, the IEBC may issue a formal warning; a fine as determined by the Commission; and/or issue an order, for a specific period or permanently, prohibiting the political party or candidate from, inter alia, utilising public media; holding particular public meetings, demonstrations or marches; entering any specified electoral area for purposes of canvassing for membership, or for any other electoral purpose; and/or erecting placards or banners, or from publishing and distributing campaign literature. Failure to comply with the order of the Commission in this regard can result in, inter alia, the prohibition of the defaulting party from participating in ongoing and future elections or the cancellation of the right of such political party or candidate to participate in the next election. The Commission further may either of its own motion or in consequence of any report made to it, institute proceedings in the High Court in case of any alleged infringement of the Code. The High Court may then make an order cancelling the right of such party to participate in the election concerned; and/or make an order disqualifying, in the case of a person who is a candidate, that person from being a candidate or deleting the name of that candidate from the list or lists of candidates concerned. Regarding such proceedings, section 11 of the Code requires that the High Court ensure that these proceedings are dealt with in priority to all other matters brought before it and that the decision of the court is given before the date of the election concerned.
3.3 Office of the Registrar of Political Parties
Section 33 establishes the Office of the Registrar of Political Parties whose functions, under section 34, include, inter alia, the registration, regulation, monitoring, investigation and supervision of political parties to ensure compliance with the Political Parties Act; and the investigation of complaints received under the Political Parties Act. Under Section 49, the Registrar is further mandated to make regulations generally for the better carrying out of provisions of the Political Parties Act and specifically regarding the manner of registration of political parties; regulating the activities of political parties; prescribing the forms, which may be used for carrying out the provisions of the Political Parties Act; regarding the audited accounts and financial accounts relating to the assets and liabilities, income and expenditure of political parties; and requiring the submission, to the Registrar ,of annual or other periodical returns relating to the constitution, objects and membership of political parties. The Registrar therefore plays a significant role in the monitoring and supervision of the operations of political parties in Kenya. The regulations governing the discharge of the powers of the Registrar mentioned above are currently being drafted. It is expected that they will contain the relevant procedures and timelines relating to the functions of this office. Appeals from the decisions of the Registrar and his/her agents lie to the Political Parties Disputes Tribunal.
3.4 The Political Parties Dispute Tribunal
Section 39 of the Act establishes the Political Parties Disputes Tribunal (PPDT) whose members are appointed by the Judicial Service Commission. Under Section 40, the jurisdiction of the Tribunal includes the mandate to resolve: disputes between members of a political party; disputes between a member of a political party and a political party; disputes between political parties; disputes between an independent candidate and a political party; disputes between coalition partners; and appeals from the decisions of the Registrar under the Act. According to Section 41(1), all such disputes must be determined within a period of three months. The decisions of the Tribunal are not final; Section 41(2) provides that aggrieved parties have the option of appeal to the High Court on points of law and further appeals lay to the Court of Appeal and the Supreme Court. The rules of evidence under the Evidence Act and the Civil Procedure Act are to apply to the tribunal with the necessary modifications, while ensuring that its proceedings do not give undue regard to procedural technicalities (Section 41(4)). The Act however requires that, where matters are internal to a political party, that the Tribunal’s jurisdiction only crystallises once a party invoking the said jurisdiction could show that he/she had exhausted all internal dispute resolution mechanisms.
3.5 Internal Political Party Mechanisms
Pursuant to Section 9 of the Political Parties Act, the Second Schedule thereto contains the requirements for the contents of the Constitution of Rules of a political party without which a political party cannot be registered. Section 23 of the Schedule provides that all parties must outline the internal political party dispute resolution mechanism. There are no express provisions as to what the content of the internal mechanism must be; however, there are provisions in Art. 91 and 92 of the Constitution as well as in the Election Act which suggest that it must meet the a standard that, inter alia, abides by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party; respects the right of all persons to participate in the political process, including minorities and marginalised groups; respects and promotes human rights and fundamental freedoms, and gender equality and equity; and promotes the objects and principles of the Constitution and the rule of law. Indeed, this role is buttressed by the Electoral Code of conduct that, under section 6, requires, inter alia, all political parties to take reasonable steps to discipline and restrain their party office-bearers, employees, candidates, members and persons who support the political party in regard to contravention of the Code or electoral law.
4. Pre-Election EDR: Between Judicial and Administrative Mechanisms
With the 2013 General Election fast approaching, there remain significant challenges in regard to the constructive rationalisation of the relationships between these five institutional actors. The importance of comprehensive regulations for the Office of the Registrar of Political Parties, Rules of Procedure of the IEBC and PPDT, as well as regulations governing the content and operation of the internal dispute mechanisms of political parties cannot be gainsaid. The same must be drafted urgently, harmonised between the related mechanisms, with the various pieces of electoral legislation and with the jurisprudence and procedure of the courts; and consequently validated by all parties. In considering the relationship between the Judiciary and the administrative mechanisms in pre-election EDR, an analysis of precedent and the jurisprudence emerging from the courts is enlightening.
Over the years, the question as to whether the Election Court can hear and determine a disputes arising from nominations of a candidate by political parties has seen conflicting decisions being issued from the courts. In Wamboka vs Kibunguchi Election Petition No 26 of 2003  the court held that nomination of a candidate was a matter that could be determined by the election Court, as it is part of the election process. However, in Gowe vs Electoral Commission Civil Case No 6036 of 1992  the Court held that there was no provision in the repealed National Assembly and Presidential Elections Act (Cap. 7) that allowed the High Court to entertain a dispute regarding the nomination of a candidate for a parliamentary election. With the promulgation of the new Constitution and the wide rights and standing it affords petitioners and complainants in regard to breaches of fundamental rights and freedoms contained therein, the question has emerged as to what challenges the courts can entertain, the remedies that can be offered and the relationship between the courts and administrative EDR structures.
In the recent case of Paul Waweru Mwangi v. IIEC & Others Petition No. 71 of 2011 (Unreported), the High Court found that the Returning Officer had acted contrary to Regulation 15 and 18 of the Presidential and National Assembly Regulations made under Section 34 of the now repealed National Assembly and Presidential Elections Act, Cap 7. Citing, inter alia, Art. 23 and 47 of the Constitution 2010, the court granted an order of injunction restraining the Interim Independent Electoral Commission from holding, directing, conducting or otherwise supervising the parliamentary by-election for Kamukunji Constituency until the petition by the complainant had been heard and determined. On appeal, in Interim Independent Electoral Commission and Another v. Paul Waweru Mwangi CA Civil Application No. 130 of 2011 the Court of Appeal discharged the injunction issued by the High Court restraining the then Commission from conducting of the Kamkunji by-election on Account of allegations of breach of fundamental rights and freedom during the nomination stage.
In the High Court ruling, Justice Musinga relied on the case of Richard Chirchir v. Henry Cheboiwo & Another Civil Application No. NAI 253 of 1992 where the Court of Appeal, in ruling refusing to stay an injunction granted by the High Court, held,
“The law of Kenya contemplates that a Kenyan seeking nomination as a candidate in a parliamentary election shall be entitled to unimpeded access to the returning office of the constituency of his choice. If this application is refused, the only possible prejudice Mr Kamure will suffer, if you can call it prejudice, is that his purported election as a member of Parliament for Baringo North Constituency will be slightly delayed but he can take some consolation from the fact that such a temporary setback is not too heavy a price to pay for democracy. Soon after the general election the Speaker will issue the necessary writ for an election to be held according to the law. On the other hand, if we allow this application, we shall be giving a seal of approval to unbridled use of violence and strong arm tactic in the election process. That cannot be the function of a court of law.”
That Cheboiwo case was itself discredited in the case of Wanyoike v. Electoral Commission of Kenya (No. 2) (2008) 2 KLR (EP) 43 in which the Court of Appeal stated,
“We do not know whether in granting an injunction in the Cheboiwo case, the attention of the court was drawn to the case of The Speaker of The National Assembly v The Hon James Njenga Karume, Civil Application No 92 of 1992 (unreported) which had been decided by the Court on the 29th May, 1992, barely some six or so months back. Both Kwach & Cockar JJ A who sat in Cheboiwo’s case had sat on Karume’s case and there the Court had delivered itself as follows in granting to the Speaker an order of stay: “In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional provisions.” Karume’s case was decided and December when Cheboiwo’s case came up for decision which would warrant the Court making such a drastic turn-about. We think the procedure for addressing grievances arising from elections is through an election petition and that is exactly what the Court was saying in Karume’s case. That view had full support in authority, both local and foreign. In Raphael Samson Kithika Mbondo v. Luka Daudi Galgalo and Paul Joseph Ngei, Election Petition No 16 of 1974 (unreported) it was alleged that Mr Ngei and his supporters had in effect physically prevented Mr Mbondo from presenting his nomination papers. Mr Mbondo, however, did not go to the High Court by way of a plaint to. to compel the Returning Officer to accept his papers. He waited until the results were published and then he filed an election petition. The election of Mr Ngei was nullified and Mr Ngei was found guilty of an election offence.”
That case was also followed in the case of Kipkalya Kiprono Kones v. Republic & Another ex-parte Kimani Wanyoike & 4 Others, (2008) 3 KLR (EP) 291, where the Court of Appeal re-affirmed this position and stated,
“No doubt, mistakes even grievous mistakes, will be made in the process of elections or nominations but such mistakes cannot be used to stop the electoral or nomination process. In filing either their plaint or the judicial review process now under consideration, the clear intention of the parties aggrieved by the action of the Commission was to stop the Commission from proceeding with the process of nominating the Appellant. If the Commission can be stopped from completing the process of nomination, it can also be stopped from completing the process of elections. That cannot be allowed because if it were to be allowed, the country may well end up having no members in the National Assembly as there undoubtedly will be interventions by the courts in the process of either electing or nominating members to the National Assembly.”
The reversal of Justice Musinga’s ruling is important in a number of respects. First, it suggests that despite the contravention of express electoral legislation by the election management body and /or its agents, it would set a dangerous and destabilising precedent were parties able to approach the court for injunctions in order to stay an entire electoral process. Secondly, it places increased focus on the resolution of such disputes as they occur within the relevant administrative EDR mechanism rather than through approaching the courts for remedies such as injunctions. Should the party still feel aggrieved by the administrative action of the electoral management body, the above precedent suggests that the party will have to wait and bring the complaint by way of an election petition (therefore after the election and announcement of the results) rather than apply to the courts for stay of the entire election.
Regarding administrative EDR mechanisms, the Constitutional and Human Rights Division of the High Court has recently encouraged litigants to pursue internal party dispute machinery and indeed declined to entertain disputes arising from internal party activities in the first instance. Political Parties, the court has held, ought to activate the internal machinery for dispute resolution and such mechanisms exhausted before they can be escalated to the Political Parties Disputes Tribunal. Section 40(2) of the Political Parties Act, 2011 which Act confers jurisdiction on the Political Parties Disputes Tribunal provides as follows: “Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a) (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.” A question would then arise, what happens if a party fails to activate the existent party mechanisms of EDR? In a ruling dated 14th December, 2011, Stephen Asura Ochieng & 2 others v. Orange Democratic Movement Party & 2 others, Const. Petition No. 288 of 2011, as per, Ngugi LJ at Para. 11:
“The question that arises is this: can it be properly argued that a dispute cannot be referred for determination to the Political Parties Tribunal because the political party has failed or refused to activate the internal party dispute resolution mechanism, thus leaving an aggrieved party with no option but to turn to the High Court for redress? I think not. To hold otherwise would mean that parties could, by failing to resolve disputes internally, frustrate the operations of the Tribunal and render it totally redundant.”
The issues in dispute between the petitioners and the respondents fall either under s. 40 (1) (a) or (1)(b). As members of the Orange Democratic Movement Party, the petitioners are entitled to participate in the elections of the party. If there is disagreement on who is a member and therefore entitled to vote in the grassroots elections or where the elections should be held, that is a matter that can be and ought to be settled through the internal party machinery.
Similarly, in a ruling dated January 2012, the court in George Okode & 5 others v. The Orange Democratic Movement & Another, Const. Petition No. 294 of 2011 the Hon. Justice Majanja held the view:
“I am aware that the Orange Democratic Movement has a Constitution that provides for dispute resolution. Such mechanisms are recognised and are indeed encouraged by the Constitution…I would interpret section 40(2) of the Political Parties Act to permit an aggrieved member of the party to bring their grievances before the Tribunal where such party has neglected or refused to activate the political party mechanism. Such a reading of the statute is consistent with giving efficiency to the political rights enshrined under Article 38 of the Constitution.”
The court in both of these cases, gave orders to the party to activate its dispute resolution mechanism within a seven days failure of which the petitioners were at liberty to approach the Political Parties Disputes Tribunal.
Most recently, the Constitutional Court has struck out three petitions (James Wambugu Gakunji & Another v. The National Alliance Party and 3 others, Constitutional Petition No. 359 of 2012, John Odhiambo Odira v. Orange Democratic Movement & Another, Const. Petition No. 357 of 2012 & Francis Gitau Parsimei v. The National Alliance Party & Another, Const. Petition No. 356 of 2012) alleging irregularities in the conduct of party nominations. In declining to grant conservatory orders to stop the nomination of candidates, the learned Judge noted that Article 88(4)(e) and section 74 of the Elections Act vested the IEBC the responsibility of settling disputes relating to or arising from nominations save for election petitions.
In determining the matters, the court addressed itself to the need for a balance to be struck between the Bill of Rights which inter alia protects the political rights which are enforceable under Articles 22 and 258 on the one hand and the recognition that political rights and the electoral process are special and needed specific forum for determination. The Hon. Justice Majanja opined,
“In my view, this insistence of a specific procedure is not inconsistent with the Bill of Rights; it is recognition that election disputes require special rules for determination. These rules are justifiable in a democratic society and the Constitution itself contemplates that the electoral process is a special process.”
The courts have established the principle that where the Constitution and/or statute establish a dispute resolution procedure, then that procedure must be followed. (See further The Speaker of the National Assembly v the Hon. James Njenga Karume, Civil Application No. 92 of 1992, Kipkalya Kiprono Kones v. Republic & Another ex-parte Kimani Wanyoike & 4 others, (2008) 3 KLR (EP) 291, Wanyoike v Electoral Commission of Kenya (No. 2)(2008) 2 KLR (EP) 43). In Constitutional Petition No. 356 of 2012 (see above), the court stated thus:
“It is also my view that Article 88(4)(e) and section 74(1) of the Elections Act, 2011 provide for alternative modes of dispute resolution specific to the nomination process. This court cannot entertain nomination disputes where such a process has not been invoked or where it has been demonstrated that the process has failed.”
The legal provisions relating to pre-election dispute management are primarily contained in the Constitution, the Elections Act, the Independent Electoral and boundaries Commission Act and the Political parties Act. The courts must take into account all these provisions realising that elections are a process and that the important role of the courts in considering election petitions is significantly affected by the ability of both administrative and judicial mechanisms to deal with electoral disputes and offences in the pre-election period.