The Star (Nairobi)

23 January 2013

Kenya: Chief Justice Wants Election Cases Fast Tracked

JUDGES have been instructed to fast-track all pending election-related cases before them.

Chief Justice Willy Mutunga issued a memo yesterday asking judges to "prioritize" all criminal or civil disputes directly or indirectly touching on the elections.

One pending case questions the eligibility of Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto to run for president and deputy president on March 4.

The International Centre for Policy and Conflict filed the case on November 30 last year after a similar one by another group was withdrawn.

The ICPC wants the court to determine whether Uhuru and Ruto can hold public office while they are on trial at the International Criminal Court. Their trials on charges of crimes against humanity are due to begin at the ICC on April 10 and 11 respectively.

The ICPC also wants the Kenyan courts to determine whether the holding of state offices by the two ICC suspects and any other criminal suspects would perpetuate the culture of impunity.

"The resolution of all these disputes are of huge public interest and go to the very root of our democracy. It is therefore imperative that the judiciary deals with these matters with due expedience and efficiency," Mutunga says in his memo.

The memo titled "Judiciary and March 2013 general elections" asks all judicial officers to prepare themselves "psychologically, mentally and physically" for petitions and disputes.

Mutunga reminded the judges that electoral disputes occur from nomination, through the announcement of results, and election petitions filed thereafter.

The recently concluded party nominations were described by many as 'shambolic' and numerous disputes have already been lodged with the individual political parties and with the Independent Electoral and Boundaries Commission.

It is anticipated that most of these disputes will be resolved at the party and the IEBC level with only a few spilling over into the courts. Mutunga said the litmus test for the ongoing judiciary reforms will be the courts' ability to handle election petitions.

He said all judicial officers must internalise the scale of the demands. On March 4, over 1800 electoral seats will be contested for the positions of president, governors, senators, MPs, women and county representatives.

"It is imperative that we are well equipped, organized and prepared to deal with election petitions," he said.

In the memo, Mutunga banned judicial leave between March and October to enable the judiciary to pool enough manpower to determine election petitions within the stipulated legal timelines. Mutunga said the "magnitude of the task" and "national interest" justified his decision.

According to the law, all petitions except for the presidential elections must be concluded within six months. The High Court will handle petitions arising from parliamentary elections while magistrates will handle all petitions at the county level.

The Supreme Court has an exclusive mandate of handling presidential election disputes. These petitions must be determined within 14 days of the filing.

The draft presidential petition rules which are about to be published however allow for pre-poll petitions both at the nomination stage and after the first round. These rules may however be changed before publication.

Mutunga's memo also puts judicial staff on notice that they will all have an extra workload whether or not he appoints them on the electoral bench.

"All judicial officers are therefore expected to take steps towards rationalizing their diaries in the anticipation of election petitions and disputes following the March 4, 2013 elections," the memo reads.

He says in the memo that "a large number" of judicial officers will be appointed to the electoral bench and "probably placed to hear petitions outside their home stations."

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