12 January 2013

Kenya: Why This Election May Be Won in Courts

THE draft Supreme Court (presidential petition) Rules 2013 released this week are the clearest pointer that this general election may actually be won or lost in courts much than in the ballot.

Prepared by the Judiciary Working Committee on Election Preparations appointed by Chief Justice Willy Mutunga, the rules essentially make it easier for "any person" to knock down either a presidential aspirant from the race or an actual president-elect from assuming office.

The rules were developed in pursuance of Article 163(8) of the constitution which mandates the Supreme Court to make rules for the exercise of its exclusive jurisdiction of hearing presidential election petition.

Parliament which has made it its business to conveniently mutilate and sometimes selfishly adulterate election-related laws has no role in the publication of these rules.

Without any doubt, the most revolutionary and possibly controversial aspect in the rules is the clause allowing for pre-poll petitions; that is before the actual elections are held.

Under the arrangement, the Supreme Court will entertain petitions immediately after the official clearance of the presidential candidates by the Independent Electoral and Boundaries Commission (IEBC).

According to the committee which developed the rules, this clause is a natural consequence of a unanimous Supreme Court decision on December 11 which said the election of a president is a process.

The decision said as such, Supreme Court ought to entertain a dispute on the validity of a presidential election "at any critical steps of the electoral process."

The effect of the rule, if upheld in the ongoing validation of the rules before they are gazetted, is that presidential petitions will start on January 31, after official presidential nomination dates of January 29 and 30.

Technically, this may also imply that the integrity matter of deputy Prime Minister Uhuru Kenyatta may end up at Supreme Court even before a junior court- the High Court disposes off a similar matter before it.

The case by International Centre for Policy and Conflict (ICPC) is set for hearing next week. Practically, the case may not be determined conclusively by the High Court and by the Court of Appeal and Supreme Court (outside the petition framework) before the election time.

If a petitioner goes to the Supreme Court on January 31, the court may have little grounds to stop him or her since they will be bringing it up as an election petition. Once allowed, the court will have seven days within which to make a determination on the matter.

Under the rules, the petitioners can challenge the qualification of any of the presidential candidates relating to Article 137 of the Constitution and Section 23 of the Elections Act.

According to the sections, presidential candidates must among other things be qualified to run as Mps. To run as an MP, one must satisfy educational, moral and ethical requirements prescribed by the constitution.

They must not be state or public officers, must not be of unsound mind, must not be subject to a sentence of imprisonment of a term of six months and most notably, must not have been found to have abused a state or public office or "in any way" contravened Chapter Six of the constitution.

Besides the pre-poll petitions, the only other times one can challenge a presidential election is upon the declaration by the Commission of the President -elect in either first or second round election. Again, what this means is that petitions will be entertained after the first round.

In the December Supreme Court decision, the judges were unanimous that disputes arising from the first round must not await the second round to be determined. They will have to be settled at this stage and consequently, the 30 day period within which to do the second round of voting will start counting from the day a verdict is issued.

On January 31, petitioners can also challenge the process of initiation of a presidential election provided by section 14 of the Elections Act. The Act binds IEBC to publish a notice of the election at least 60 days before the general election.

In the notice, IEBC must specify the "nomination day" for the presidential election and the "day or days" in which the poll will be held, which must not be less than 21 days after the nomination day.

IEBC published this notice on December 27 meeting all the requirement except a minor one. The commission provided for two days of presidential nominations away from the one day stipulated in the law.

On January 31, petitioners can also challenge the nomination of a president if his or her running mate is changed after his or her nomination has been received by the commission. Petitions shall not however be entertained if arising from party nominations. In its decisions, the Supreme Court can dismiss the petition, declare the candidate unqualified or invalidate declarations of IEBC.

The rules are also designed to make the presidential petition a practical affair if genuine petitions are presented. It is also designed to make it practically difficult for non-genuine petitions. In 2008 election results aftermath, the main "loser" Raila Odinga refused to go to court because he did not trust them to justly handle the petition.

Before him, the only two presidential petitions in the country's history had flopped on mere technicalities. In the first one filed in 1993 shortly after the 1992 general election by "loser" Kenneth Matiba, failure by the petitioner to personally sign it cost him the petition.

Matiba, then physically incapacitated by an ailment, granted his wife power of attorney to sign the petition papers. The judge handling the petition- Justice Riaga Omolo however struck it out on the basis that Matiba ought to have personally signed the petition.

Twenty years later last year, Omolo was declared unfit to serve in the judiciary by the Vetting of Judges and Magistrates Board over this decision: "It gratuitously showed grave disrespect for disabled people, castigating the petitioner in an ungenerous and uncalled for manner."

In the only other petition of 1998 petition against Moi by another "loser" Mwai Kibaki, judges Emmanuel O'Kubasu, Mbogholi Msagha and Moijo ole Keiwua insisted that Kibaki ought to have personally served Moi with the petition.

Kibaki had served Moi by publishing the notice of the petition in the official Kenya Gazette which Moi by his duties as a president was able to access and read. The judges were adamant and their position was even upheld at the then highest Court of Appeal by judges Omolo, Bernard Chunga (CJ), AB Shah, AA Lakha and Owuor JJ.

In a striking departure from this sordid past, the rules make it explicitly clear that service of the petition on the respondent need not necessarily be personal.

"Upon filing a petition, the petitioner shall serve the petition on the respondent within 24hours. Service of the petition on the respondent shall be --(a) directly on the respondent; or (b) by advertisement in a newspaper with national circulation," Rule 8 says.

The grounds for petitioning in a presidential election have been liberalized. Just any person- not necessarily a candidate or voter- can petition. The petitioners can challenge the election of a president on the basis of their entitlement to vote as registered voters, secrecy of the poll, tallying of votes, results of the polls and declaration of the results by IEBC among others.

On the Supreme Court quorum, the rules says the court shall be properly constituted to hear petitions if it is composed of five judges. Petitioners must deposit Sh1 million as security for costs.

To mitigate against an emerging trend of hiring petitioners to frustrate petitions and lead to their loss, the rules allow for the petitioner to apply to either substitute a co-petitioner of strike them out altogether.

Petitions can withdraw their petitions but with the leave of the court. They may however also substituted with other persons "who may have been entitled to a petitioner" if such persons express interest in continuing with the case.

In the past, bogus petitioners in matters of public interest have rushed to the courts, locked out genuine petitioners or enjoined them only to withdraw the petitions later. The rules are designed to cure this practice.

Hearings shall proceed uninterrupted on a day to day basis until conclusion. Not even the death of a petitioner or respondent shall stall the hearing. There will be status conferences to plan for an efficient conduct of the hearing.

Just like in the ICC, the Supreme Court status conferences will frame contested and uncontested issues, consider consolidation of petitions in cases where more than one petition is filed and give directions or orders in relation to any interlocutory matters; among other things.

The rules also allow for expert witnesses or friends of the court (amicus curiae) to appear in the petitions depending on their expertise, independence, impartiality, relevance to the public interest or other relevant considerations.

At the conclusion of a post-poll petition, the court may dismiss the petition, declare the election of the president valid or invalid or invalidate declarations of the commission. The court can also give its decision and "reserve its reasons for the decision to a later date."

In the end, the focus may be shifting to the courts and their ability to upset the ballot process. The rules have now been distributed to stakeholders for comments. They may then be reworked before being officially gazetted.

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