RANDOM THOUGHTS ON ELECTION PETITIONS

For a legal practitioner like me it is not difficult for me to understand the frustration and contempt, Hon Raila and the ODM have for the judiciary. The Constitution contemplates that all electoral disputes regarding the Presidential and Parliamentary elections will be resolved through the courts. But such a process is not only legal but also political and even the judges who are supposed to apply the law without fear or favor, are political animals judging real cases in a political context. If past experience is anything to go by, Presidential Elections petitions are the mirror through which our experience is judged. Election petitions are a political contest and anyone who ignores this is a fool.

Any party who challenges the sitting President or Member of Parliament is presented with a fait accompli and our courts have held repeatedly stated that they will not interfere with the election process except upon presentation of a petition in accordance the law after the elections have been held and declared. This presents an up hill task for any petitioner. Such a task is not only legal in nature but also political. Remember for example, a petitioner needs to collate evidence and with state machinery backing him, the president can make evidence disappear or intimidate witnesses given the enormous resources available to the sitting president. If the state machinery was being used to manipulate the tallying process, it would be naïve to think that the president or his agents would not manipulate the evidence to be presented to the court. What is not even being addressed now, is what efforts are being made to secure the ECK documents etc.

The third point I wish to make is that election petitions are notoriously difficult and technical to prosecute and defend. This are of law is wrought with a myriad of technical rules that must be followed to the comma and any stumble will lead to a whole petition being struck out hence denying the public access to the real and substantial issues of the case. Unfortunately even the best legal practitioners keep tripping over the technical traps in strewn all over the legal process. My immediate concern however is that the bench and the bar has lost the benefit of persons of experience in this area of law. This has been a result of overall politicization of the process and pre-ordained outcomes. This can be seen through the past cases (links are down);

• The case of Kenneth Stanley Njindo Matiba vs Daniel arap Moi was decided against a background of massive rigging allegations in the 1992 and also the fact that this was first presidential election petition in Kenya. The political stakes were high as the election was the first multi party election in Kenya after the repeal of the infamous Section 2A of the Constitution. The case was struck out on the basis that the petition was not signed by Hon Matiba himself but his advocate. On such a technical decision, Kenyans were denied the right to know what actually happened.

• The case of Mwai Kibaki vs Daniel arap Moi after the contested 1997 elections. It was decided on the basis that President Moi was not personally served with the petition. In my view, this case was a case of tortured reasoning because all the previous decisions, both local and from other commonwealth countries, with similar legislation, were clear that the petitioner had several options of service of the petition including service through the Kenya Gazette. What is now interesting, is that the same judges who made the decision while not expressly overuling it have tried to mitigate its effects without saying that they were wrong.

It is against this background that the distrust of the judiciary is understandable. But one area in which the Judiciary has expertise in is running the clock. The petition may be filed this month but it will take five years to finalise. Strange but true ...

I also think the legal process can provide a window of opportunity for resolution of the current impasse. Say a petition is filed contesting the election, the parties could agree to record a consent decree to have the results tallied and thereafter the court to declare the winner of the election. This of course assumes that the losing party will agree to initiate the process. Any chance of that happening?