The Star (Nairobi)

11 February 2013

Kenya: Chief Justice to Factor Judges' Tribes in Poll Petitions

Chief Justice Willy Mutunga will factor the tribe of the judges he will pick to hear any presidential election petitions.

Justice Mutunga said this will dispel any perceptions of ethnic or religious bias in the petitions so that justice is not only done, but is seen to be done.

Justice Mutunga said the Supreme Court --of which he is the president-- was ready for any presidential election petitions that may arise after the gazettement of petition rules.

"We will choose the benches bearing in mind the perceptions of ethnic biases, religious biases, regional biases, gender and generation factors. The purpose of this is to ensure that the decisions handed down will be seen to be just and impartial," he told the BBC in an interview.

If any of the eight presidential candidates--Raila Odinga, Uhuru Kenyatta, Martha Karua, Peter Kenneth, Musalia Mudavadi, James Kiyiapi, Paul Muite, Abduda Dida -- file a petition, the CJ will not pick a judge from their tribes to hear the case.

Justice Mutunga will also take into consideration the religion, gender, region and age of the judges in relation to the petitioner to ensure the credibility of the judgement delivered was not the subject of cynical debate.

The final presidential petition rules were gazetted a week ago. The rules took effect on February 1. They provide guidelines for the judges who will be chosen to listen to presidential petitions that might arise from the first round of elections on March.

If the petitioner is a woman, Justice Mutunga said he is unlikely to appoint a woman in the bench to hear the cases.

"A person may file a petition challenging--(a) the validity of the election of the President- elect; or (b) a declaration by the Commission under Article 138(5)," the petition rules say.

Article 138(5) provides for a presidential run-off if no candidate clinches the requirements of more than half of all votes cast and at least 25 per cent of votes in at least 24 counties.

The petitions can also be based on entitlement to vote, secrecy of the ballot, tallying of results, declaration of results and publication of the winners. The rules add:

"The grounds upon which a petition may be filed include; (a) the validity of the conduct of a presidential election; (b) the validity of the qualification of a President-elect; (c) the commission of an election offence as provided under Part VI of the Elections Act;(d) the validity of the nomination of a presidential candidate."

The provision that commission of electoral offences will form the basis for presidential petitions opens flood gates for petitions. Part V1 of the Elections Act provides for a wide range of offences which majority of the presidential candidates can be accused of.

The offences range from corrupt influences, voter bribery, violence, inducement through freebies in return for either vote or refraining from voting to use of public resources before or during an election.

They also include direct and indirect influences and intimidation of the voter, monetary promises to voters and coercion of candidates to drop from the race through promises of monetary pay-back. Also, forging, defacing and destruction of campaign materials for an opposing candidate,

The Elections Act makes the case worse for presidential candidates. Clause 72(4) says presidential candidates may be disqualified if they knowingly aids in commission of an election offense by either their supporters of their party.

Under the new rules, respondents in the petitions will have no room to play hide-and-seek games as the rules now provide for e-notices. Petitioners will have three days to serve the respondents either personally or through a newspaper.

Thereafter, the petitioners are required to serve the respondents "by electronic means" within two hours of the official service through a newspaper of personal service.

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