ANALYSING THE OVERIDING OBJECTIVE VIS-A-VIS THE TIMELINE FORSOLVING PRESIDENTIAL ELECTION PETITIONS IN KENYA

Authored By: Daniel Charo Kombe

Kenya School of Law

Introduction

Justice delayed is Justice denied and Justice hurried is Justice buried. On 27^th August, 2010, the people of Kenya adopted, enacted and gave a constitution to themselves and to their future generations.[1] The said Constitution set out the procedures to be followed for settling election disputes. When Presidential election results are disputed, the Court process of looking into the validity or invalidity of such results is critical. The timeline for solving Presidential Election Disputes in Kenya is a critical one for a fair hearing. Fair trial means having sufficient time to conduct research, prepare pleadings, gather evidence and preparing witnesses in order to have a well-researched and drafted Petition. Equally, Judges require enough time to analyze the evidence adduced in order to come up with a well analyzed Judgement. The Judiciary is faced with the unenviable task of determining the ultimate outcome of the poll in elections which the results have been contested in the courts. Consequently, in order to protect the peoples’ right of choice in an election, and to promote and safeguard democracy, the Judiciary must be perceived as competent, honest, learned and independent.[2]

The Law provides that, within seven days after the date of the declaration of the results of the presidential election, a person may file a petition in the Supreme Court to challenge the election of the President-elect.[3] Rule 7(3) of the Supreme Court (Presidential Election Petition) Rules, 2017 says that, if the petition is filed on the last day, it must be before 2 pm. Within fourteen days after the filing of a petition, the Supreme Court shall hear and determine the petition and its decision shall be final.[4]

This Article will analyze the overriding objective vis-a-vis the strict timelines for filing and solving presidential election disputes and how it can impact the outcome of the petition. This Article does not focus on how the law is, but rather how it ought to be. Further, this paper will do a comparative analysis with other Jurisdictions regarding the issue of timelines in such disputes.

Historical Background

Before the promulgation of the Constitution of Kenya,2010, the High Court had authority to hear and determine petitions arising from presidential elections within 6 months after the declaration of the results.[5] However, the president elect could be sworn in before the petition had been decided by the High court. This defeated the essence of a petition process and the case would take longer than 6 months for a Judgement to be rendered.[6] To cure this, the drafters of the Constitution of Kenya,2010 introduced strict timelines for Presidential election petitions. A person disputing the election of the President-elect must file a Petition at the Supreme Court within 7 days after the declaration of the Presidential Election results. Within 14 days after the filing of a petition, the Supreme Court shall hear and determine the petition and its decision shall be final.[7]

On 29^th December 1992, general elections were held with Daniel Moi declared as the President-elect. Keneth Matiba made a Petition to the High Court to challenge the results. The President elect Moi was sworn in before the petition against his win was determined. The final determination was given on 19^th November 1993 over a year later.[8]

In Mwai Kibaki v Daniel Moi, the respondents argued that the mode of service effected by the appellant through serving of the petition documents with the Registrar later than the prescribed period of 28 days was in contravention to Section 20 of the National Assembly and Presidential Act Cap 7. The matter was settled in court a year after the elections had been held and the incumbent had been sworn into office, which prejudiced the court process due to the immense ‘political influence and the national resources under his control as the serving president of the country.[9]

In 2013, Raila and activists challenged Uhuru Kenyatta and William Ruto’s win, alleging fraud. The Supreme Court upheld the results, declaring the election lawful.[10] In the course of the proceedings, a party applied to have additional evidence in the form of Further affidavit adduced. The request was declined because there was no time.[11] This portrays a picture where strictly adherence to the set timelines could lead to great Injustice.

In 2017, the Supreme Court of Kenya rendered a Landmark Ruling which nullified the election of Mr. Uhuru Kenyatta and William Ruto due to irregularities. This Precedent is historical and the first in Africa.[12] NASA’s Presidential candidates, Raila and Kalonzo were the lead petitioners. A fresh vote was ordered, but NASA boycotted. Uhuru won again, and subsequent challenges by Harun Mwau and others were dismissed, affirming the re-election.

The current constitution emphasizes on expeditious resolution of presidential disputes aiming for transition in power of the office of the President to be legitimate, peaceful and ensure no power vacuum. Indeed, this encompasses the principle of expedient justice in contemporary legal circles.[13]

It is true that Justice delayed is Justice denied and Justice hurried is Justice buried. It would appear that in election petitions, Justice is good, but finality is better. Procedural laws are there to aid access to Justice, they should not hinder Justice. The Court of Appeal in the case of Githere v Kimungu (1976-1985) E.A 101, held that rules of practice to the administration of justice is intended to be that of a handmaid rather than a mistress, and that the court should not be so far bound and tied by the rules, which are intended as general rules of procedures, as to be compelled to do that which will cause injustice in a particular case.[14] The Constitution of Kenya,2010 affirmed this by introducing the overriding objective in article 159. In exercising judicial authority, the courts and tribunals shall be guided by the following principle; Justice shall be administered without undue regard to procedural technicalities.[15]

ANALYSIS OF THE 2022 PRESIDENTIAL ELECTION DISPUTE

The Chairperson of IEBC, Mr. Wafula Chebukati announced the Presidential Election results on August 15, declaring Mr. William Ruto as the President-Elect. Eight cases were filed on August 22, 2022, at the Supreme Court of Kenya disputing the results of the presidential election.

On August 30, the court consolidated seven cases and dismissed two. The hearing began immediately thereafter. The Supreme Court rendered its decision on September 5, which was 14 days from the date the petitions got filed. Due to the tight schedule, the court chose to give a summary judgment within this time and will follow with more thorough decisions from each of the seven judges. It is clear from the chronology of events surrounding this petition, the Supreme Court operated strictly on the set-out timelines.

The Supreme Court listed 9 issues[16] for determination but of interest to this paper is issue number one and two as follows:

Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security, and transparency to guarantee accurate and verifiable results;

Whether there was interference with the uploading and transmission of Forms 34A from the Polling Stations to the IEBC Public Portal.

The above issues revolved around the technology used by the IEBC in the election. Analyzing and determining issue number one and two was more of a technical exercise rather than a Judicial Exercise. It required reports and opinions from experts in order to determine whether the technology used was interfered with. These issues required a thorough scrutiny of the serves in order to come up with good report that could help Judges when making the determination. However, this was overtaken by events due to the strict timelines placed by the Law. The rigidity of the timelines placed by the law makes Court to be focused on the timeline rather than the process and the outcome. The following questions then arise: Firstly, is 7 days reasonable time for a person to file a petition challenging the election of a President-elect? Secondly, is 14 days reasonable time for the Supreme Court to hear and determine Presidential election Petitions? Thirdly, what is reasonable time for a person to file a Petition and for the Court to hear and determine such a petition without hurrying and delaying Justice? The answers to these questions are debatable.

3.1 Reasonableness of time

The test of reasonable time is that of a reasonable man. The reasonable man’s test asks whether a hypothetical, sensible person would have acted the same way in similar circumstances.[17] 14 days is not reasonable time for a reasonable Judge/Court to hear and determine a Presidential election petition. Judges of the Supreme Court of Kenya have complained about the timelines as discussed in the next sub-topic.

COMMENTS BY SUPREME COURT JUDGES ON THE TIMELINE

On 1^stJuly,2022, Justice Isaac Lenaola, a Judge of the Supreme Court while appearing before SPICE FM, spoke about the pressure and time constraints of determining the petitions within 14 days. He lamented that the 14 days were ridiculously short for the bench to scrutinize all the evidence presented before them or to even conduct a vote recount.[18]

Similarly, Hon. Justice Mohammed Ibrahim, Judge of the Supreme Court while appearing on Spice FM sympathized with the strict timelines placed for solving presidential election disputes. He contended that the 7 days given to Petitioners to file and serve a petition is not enough to Gather evidence and come up with a reasonable petition.[19] He contended that fair trial means having sufficient time to conduct research, prepare pleadings, gather evidence and preparing witnesses in order to have an arguable petition. Similarly, the 14 days placed to solve the case is too little for the Court to conduct research and analyze the evidence in order to come up with a well analyzed Judgement.

Apparently, this is a challenge. This challenge calls for an amicable solution that will assist in access and delivery of Justice

COMPARATIVE ANALYSIS

5.1 GHANA

In Ghana, the validity of the election of the President may be challenged only by a citizen of Ghana who may present a petition for the purpose to the Supreme Court within twenty-one days after the declaration of the result of the election in respect of which the petition is presented.[20] A declaration by the Supreme Court that the election of the President is not valid shall be without prejudice to anything done by the President before the declaration. This affords the

The 21 days given to file a petition is reasonable time for parties to meticulously gather evidence, conduct research and come up with a reasonable Appeal. In this period, the Petitioner can adduce additional evidence that may arise before the time lapses. Contrasted with the Kenyan legal regime, only 7 days are provided for the persons to petition the declaration of the presidential election results. This is not reasonable time for parties to meticulously gather the evidence that would ground their respective claims and responses.

5.2 INDIA

In India, the results of the presidential election are contested under Article 145 of the constitution in the form, manner, and the procedures which the Supreme Court prescribed. Section 14A of the Presidential and Vice-Presidential Elections Act provides a maximum of 30 days under which a petition should be presented in the courts after a declaration of the election results. Article 21 of the constitution of India requires that procedures established by law be fair, just or right procedures. A fair procedure grants the right to a fair hearing.

5.3 AUSTRIA

Within a week of announcement, any authorized service recipient of a valid candidate nomination proposal (Section 9) may raise an objection against the election results published by the Federal Election Commission (paragraph 1) with the Constitutional Court for any alleged unlawfulness in the election process. The objection must include a reasonable motion for annulment of the election process or a certain part thereof. The Constitutional Court shall decide on the objection within four weeks of receiving the objection.[21]

RECOMMENDATIONS

Amendment of Article 140 of the Constitution to allow extension of time for filing petitions from 7 days to 21 days and time for hearing and determination of petitions from 14 days to 30 days. This will allow for proper scrutiny of the petition evidences as well as striking a delicate balance between the right to expediency and the right to equity.

Parties to a petition should be allowed to adduce additional evidence in the course of the proceedings with the leave of the Court.

The Court should administer Justice in election petitions without undue regard to procedural technicalities such as Timelines.

BIBLIOGRAPGY

7.1 CONSTITUTION

Constitution of Kenya,2010.

Constitution of The Fourth Republic of Ghana (Promulgation) Law, 1992.

7.2 CASE LAWS

Presidential Election Petition no. E005 of 2022 (Consolidated with) Presidential Election Petition Nos. E001, E002, E003, E004, E007 & E008 of 2022),

Odinga v Independent Electoral and Boundaries Commission & 3 others (Petition 5 of 2013) [2013] KESC 2 (KLR) (26 March 2013) (Ruling).

Odinga & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition 1 of 2017) [2017] KESC 32 (KLR) (1 September 2017) (Determination).

Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3 others [2019] Eklr.

Githere v Kimungu (1976-1985) E.A 101

Reference(S):

[1] The Preamble to the Constitution.

[2] Muna Ndulo “Rule of Law, Judicial Reform, Development and Post Conflict Societies” See also Muna Ndulo,

“Judicial Reform, Constitutionalism and the Rule of Law in Zambia: From a Justice System to a Just System.”1-26.

[3] Article 140(1) of the Constitution of Kenya,2010.

[4] Article 140(2) of the Constitution of Kenya,2010.

[5] Article 10 of the Constitution of Kenya act no.05 of 1969.

[6] Kenneth Stanley Njindo Matiba v Daniel Toroitich Arap Moi [1994] eKLR. The petition lasted for for over a year after the elections had been held which was well overdue the 6-month period prescribed. The president elect Moi was sworn in as president of the Republic of Kenya before the petition challenging his win in the 1992 elections was determined.

[7] Article 140(2) of the Constitution of Kenya, 2010.

[8] Kenneth Njindo Stanley Matiba v Daniel Torotich Arap Moi (1994) eKLR.

[9] Mwai Kibaki vs Daniel Toroitich Arap Moi [1999] eKLR.

[10] Odinga v Independent Electoral and Boundaries Commission & 3 others (Petition 5 of 2013) [2013] KESC 2 (KLR)

(26 March 2013) (Ruling).

[11] https://youtu.be/Gf-A19IKnII?si=iYZftkG1RMI9v9bO .

[12] Odinga & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition 1 of 2017)

[2017] KESC 32 (KLR) (1 September 2017) (Determination).

[13] The time factor A commentary on the right of a just determination of a petition arising from a presidential

election under article 140 (2) of the constitution of Kenya, Page 16.

[14] Samuel Mbugua Githere v Kimungu [1984] KECA 51 (KLR).

[15] Article 159(2)(d) of the Constitution of Kenya,2010.