Kenya Judiciary: Next battle front for aggrieved and dissatisfied candidates with electoral disputes

Various candidates who contested for various electoral positions in the August General Elections have already disputed the results from the IEBC.

They include: Nairobi Governor Evans Kidero, Meru governor Peter Munya, Machakos Gubernatorial candidates Wavinya Ndeti, Ahmed Muhumed of and Ahmed Abdullahi (Wajir), Kajiado governor David Nkedianye, Steve Mbogo (Starehe Mp aspirant).

NASA presidential candidate Raila Odinga has also disputed the interim results, however, he can only file a petition once the IEBC announces the presidential results.

Those who lost in the General Elections have a right under the law if they are aggrieved, dissatisfied with the results as announced to seek redress in the courts of Kenya.

The Kenya Judiciary already said it is commitment to expeditiously handle electoral disputes that may arise after Tuesday’s poll.

Chief Justice David Maraga said all judicial officers have been trained to enhance the capacity of judicial officers in handling of electoral disputes.

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Article 140 of the Constitution states any person may file a petition in the Supreme Court to challenge the elections of the President-elect within 7 days after the date of the declaration of the results of the Presidential Elections and within 14 days after the filing of the Petition the Supreme Court shall hear and determine the Petition and its decision shall be final.

If the Supreme Court determines that the election of the president elect to be invalid, a fresh election shall be held within 60 days of the Supreme Court’s decision.

Article 105 (1) of the Constitution stipulates that the High Court shall hear and determine any question  whether a person has been validly elected as a Member of Parliament and the High Court must decide the question within six months of the filing of the Petition.

The Election Act 2011 does provide that a question as to the validity of election for all elective offices apart from the Presidency shall be filed within 28 days of the date of publication of the results of the election in the Gazette and served within fifteen days of the filing of the Petition.

The Independent Electoral Boundaries Commission (IEBC) cannot alter any results of 2017 General Elections once it has announced them and the only remedy open to those dissatisfied with the results is to seek redress from the High Court of Kenya and for the Presidency in the Supreme Court.

“Election petitions have emerged over the years as characteristics post-election phenomena in Kenya,” Prof. Karuti Kanyinga.

“Petitions have come to viewed as offering the only safety valve for conflicts and enmities engendered by the electoral process. However, there is a scant history of success with electoral petitions,” he adds in the book, “Kenya: Democracy and political participation.”

Election petitions were instituted in the 1992 and 1997 elections. In 1992, Kenneth Matiba who had run as the FORD Asili presidential candidate, petitioned Moi’s election, but the case was struck down because he had not personally signed the petition; his advocate had signed it for him.

In 1997, Kibaki’s petition against Moi was also dismissed on the grounds that Moi was not personally served with the petition.

In 2002, there was no petition at the presidential election as the loser conceded defeat.

After the 2007 elections,  38 petitions were filed against members of the tenth parliament disputing parliamentary elections. Four petitions were dismissed.

In 2013, 188 petitions were filed challenging the results or the process of the election, with 24 challenging the election of County Governors; 13 against Senators, 70 against Members of the National Assembly; 9 against County Women Representatives; 67 against County Assembly Representatives and 5 against County Assembly Speakers.

The Kenyan Section of International Commission of Jurists (ICJ Kenya) says, “The 2013 election petitions were of unique interest and significance.”

“Unlike in 2007, the 2013 general elections were the first under the new constitution’s dispensation, a fact that had a significant effect on the manner through which elections were to be conducted and how disputes arising therein were to be mitigated,” reads a section of the ICJ Kenya’s  ‘Compendium of 2013 ELECTION PETITIONS A Case Digest on the Law, the Practice and the Jurisprudence around the 2013 General Election in Kenya’

Among the 2013 petitions, 3 challenged the results of the Presidential Elections were filed at the Supreme Court.