Electoral Courts

 

Notwithstanding all of the foregoing with regard to the Electoral System under the Constitution of Kenya 2010, there was widespread expectation that the March 4th 2013 exercise would be up against severe odds. Indeed it was, but despite these significant challenges and logistical nightmares faced by the electoral body, the IEBC, the number of electoral petitions lodged with the Courts by aggrieved parties remained small - representing only about 10 percent of electoral seats. The recurring theme running in almost all the various petitions, was that the integrity of the process was compromised. It was, to paraphrase Justice (of the Supreme Court) J.B. Ojwang' writing on elections disputes, whether the process, "....... reflects on the quality and the constitutional integrity of the mode of discharge of the electoral mandate, by the responsible entity." (Ojwang' JB, 2013). 

Inevitably, the performance of the electoral body became the focus of these electoral petitions. Almost all the successful petitions were as a result of electoral irregularities i.e., errors of commission and/or ommission on the part of the IEBC. Many of those that were struck out or otherwise dismissed, failed to show that the said irregularities affected the outcome of the election. "....... 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" (J.B. Ojwang, 2013).

One notable exception however, was on the successful petition of the election of the Senator for Bungoma: The Court recommended that criminal investigations of bribery be initiated against the winner of that election - Moses Masika Wetangula. Section. Part 8 -  Election Disputes Resolution, Election Petitions, Section 87 of the Elections Act 24 of 2011:

87. (1) An election court shall, at the conclusion of the hearing of a petition, in addition to any other orders, send to the Director of Public Prosecutions, the Commission and the relevant Speaker a report in writing indicating whether an election offence has been committed by any person in connection with the election, and the names and descriptions of the persons, if any, who have been proved at the hearing to have been guilty of an election offence.

The incumbent Senator appealed the ruling of the High Court in Bungoma, and so pending the determination of the appeal, the law could not bar him from contesting in the subsequent by-election of December 2013, which he won. However, in a March 2014 decision, the Appeals Court sitting in Kisumu upheld the judgement of the lower Court. As expected, the Senator appealed to the Supreme Court on the 25th April 2015.

The highest Court in the land essentially sustained the rulings of the lower courts in a decision of 17th of March 2015, i.e., that the Senator bribed and treated voters - an electoral offence; and invoking the above Section 87. (1) of the Elections Act, directed its Registrar to write to the bodies mentioned in the Section, setting the stage for the possible removal of the Senator.

The reader may follow this link for a summary of the electoral courts decisions with respect to the Bungoma County Senate elections.

The following is a summary of the rulings of the electoral petitions lodged with the Courts following the first General Elections under the New Constitution:

 

Table 3.1 Summary of Successful Electoral Petitions following the First General Elections under the Constitution of Kenya 2010 in March 4, 2013.

 

Electoral Seat  
Total Number of Seats
Petitions Lodged
Petitions Percentage
Successful Petitions
Successful Petitions Percentage
Successful Petitions As A Percentage of All Seats
Governor 47 24 51% 2 8.33% 4.26%
Senator *67 13 19% 3 23.08% 4.48%
Women Representative 47 9 19% 0 0.00% 0.00%
Member of the National Assembly **302 71 24% 6 8.45% 1.99%
Member of the County Assembly 1,450 67 5% 9 13.43% 0.62%
Total/Mean 1,913 184 10% 20 10.87% 1.05%

*Includes 20 nominated members representing women and special interests.

**Includes 12 nominated members. 

 

Key findings from the table show that the number of petitions lodged represented only 10 percent, or 184 of the 1,913 elections conducted on the 4th of March 2013. Of these, slightly over ten percent or 20 were successful, representing just over one percent (1.05%) of the total number of electoral seats. 

All in all, Kenya's Electoral Process only comes to a close once all petitions have been heard and determined at the Courts. All petitions were concluded by the 23rd of October 2013, in which most (78%) were either dismissed or struck out, and 1% or 17 of them were withdrawn by the petitioners and hence did not proceed to full hearing. Of those that were successful, a few were appealed at the Appeals Court, however. Two of these - for the Governor of Lamu and for Lunga Lunga Constituency - were overturned by the Appellate Court in Malindi on the 21st and on the 27th of November, 2013 respectively, thus cancelling by-elections that were set to take place in December. In one other case, the Court of Appeal sitting in Kisumu halted on the 27 November, a planned by-election in Nyaribari Chache that had been scheduled to take place in December, until the appeal was heard and determined.

Going forward, the number of disputes expected at a general election is expected to drop as our democracy matures and electoral institutions develop adequate capacity to conduct successful (credible, free, fair) elections. 

NB. Links to respective successful petitions of the 2013 General Elections can be accessed under the respective legislative body's discussion (i.e., the National Assembly or the Senate) via the main menus at the top of this website. The electoral body on the other hand, is discussed in greater detail under the Independent Electoral and Boundaries Commission IEBC link under the Government menu link.

 

 

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