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Wednesday 22 nd May 2013
Case Summaries  

ELECTION LAW Supreme Court's reasoning on the consolidated Presidential Election Petitions

Raila Odinga & The Independent Electoral and Boundaries Commission & 3 others [2013]eKLR
Petition Nos. 5, 3 & 4 of 2013 (Consolidated)
Supreme Court of Kenya at Nairobi
W.M. Mutunga CJ & P.K Tunoi; M.K Ibrahim; J.B Ojwang; S.C Wanjala; N.S Ndungu, SCJJ.
April 16, 2013
Reported by Michael M. Murungi and Emma Kinya Mwobobia

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BACKGROUND TO THE PETITION

On 4th March, 2013 the first general election was held in Kenya. This was the country’s first election to be held under a new Constitution that had been promulgated in August 2010. The election was conducted by the Independent Electoral and Boundaries Commission (IEBC). Under Article 138 (4) of the Constitution it was provided that a candidate shall be declared elected as president if the candidate receives more than half of all the votes cast in the election and at least twenty five per cent of the votes cast in each of more than half of the counties.

During the tallying process by the IEBC, there was a failure of the electronic results transmission system which left the IEBC no other option but to resort to the manual tallying of results which resulted in an inability on the part of the IEBC to declare results as and when they were available.

In its computation of the total votes cast, IEBC had included the rejected votes in the calculation of the threshold-percentages in the tallying of the Presidential election votes with the IEBC chairman declaring that the rejected votes would count towards the final tally and that percentages of all the votes tallied for each candidate would have to be updated to reflect the inclusion of the rejected votes.

On 9th March 2013, the Chairman of the IEBC, Issack Hassan (the 2nd respondent), announced that Uhuru Kenyatta (the 3rd respondent) had received 6,173,433 votes out of a total of 12, 338,667 (50.07% of all votes cast), while Raila Odinga (the main petitioner) had received 5,340,546 votes (43.31% of the votes cast). Pursuant to Article 138(4) of the Constitution, Uhuru Kenyatta was declared the President-elect.

Subsequent to this declaration, three petitions were filed in the Supreme Court. The first petition contested the inclusion of rejected votes in the final tally which the petitioners alleged had a distorting effect on the percentage votes won by each candidate. The second petition contested the manner in which the electoral process was conducted by the IEBC with regard to the Presidential election. The third petition challenged the legality of the IEBC’s declaration of the 3rd respondent and 4th respondent as President-elect and Deputy President-elect respectively. The final petition which was filed by Raila Odinga and which was later designated as the pilot petition in the consolidation of the petitions was based on the allegation that the electoral process was so fundamentally flawed, that it was impossible to ascertain whether the presidential results declared were lawful.

At a pre-trial conference held on 25th March, 2013 and presided over by the Chief Justice, counsel for all the parties in the consolidated petitions agreed on four broad issues for determination in the three petitions:

  1. Whether the 3rd respondent and the fourth respondent were validly elected and declared as the President-elect and Deputy President-elect of the Republic of Kenya;
  2. Whether the Presidential election was conducted in a free, fair, transparent and credible manner in compliance with the Constitution and the law;
  3. Whether in determining that a candidate has met the threshold stipulated in Article 138(4)(a) of the Constitution, the term “all the votes cast” includes
    1. Only valid votes, or
    2. Both valid and rejected votes;
  4. What consequential declarations, orders and reliefs were available to the petitioners?

On 30th March, 2013, the court delivered its findings on these issues and the reasons for its decisions were delivered on 16th April, 2013.

Election Law-presidential election – validity or presidential election – election petition challenging the validity of the election of the President and Deputy President – grounds that the president – elect and deputy president-elect had not obtained the basic vote threshold to be validly elected – allegation of various irregularities that would affect the credibility of the presidential election – whether the irregularities were so grave as to render the election void - Constitution of Kenya, 2010, Articles 10,138,140

Election Law-presidential election – vote tallying - rejected votes – whether the term “all the votes cast” includes only valid votes or both valid or rejected votes – whether rejected votes should be included in the tally of all the votes cast - claim by the petitioner that the rejected votes should be excluded from the presidential election tally and order a re-tally of the votes cast – grounds that the rejected votes were marked ballot papers that had failed to comply with the approved standards in casting of votes during elections – whether the rejected votes should have been included in the final tally of the presidential election – Constitution of Kenya, 2010 Article 138 (4) (a, Elections (General) Regulations, 2012 regulation 77

Election Law-presidential election – vote tallying - re-tallying of presidential votes – allegations of discrepancies in some polling stations – where Forms 34 & 36 which a returning officer uses to declare presidential election results in a polling station and a constituency/county respectively, reflected discrepancies in 5 out of 22 polling stations with respect to numbers of votes cast – whether the discrepancies were substantial so as to affect the credibility of the electoral process

Evidence-burden of proof – standard of proof - burden and standard of proof in an electoral cause – party on whom the burden of proof lies – the standard to which the burden is to be discharged – whether proof is on a balance of probability or proof beyond reasonable doubt - where evidential burden keeps shifting depending on the circumstances – threshold to be met by a petitioner in an electoral cause

Jurisdiction -Supreme Court of Kenya - original and exclusive jurisdiction – special jurisdiction of the Supreme Court to hear and determine presidential election petition – jurisdiction not boundless as it is limited in time and scope – where it only relates to legal, factual and evidentiary questions relevant to the determination of the validity of Presidential Election – political question – role of the court in a fundamentally political-cum-constitutional process – principles that guide the court in its attempt to resolve the electoral question - whether the Supreme Court had jurisdiction to preside over the presidential election petition – Constitution of Kenya, 2010, Articles 140,163(3)(a), Supreme Court Act No.7 of 2011 Read More...

Held:

  1. The Supreme Court’s jurisdiction in a presidential election was both original and exclusive. No court other than the Supreme Court had the jurisdiction to hear and determine disputes relating to an election for the office of the President. This jurisdiction, however, was not boundless in scope as it is circumscribed in extent and in time. Limited in extent, in that it relates only to an inquiry into the legal, factual and evidentiary questions relevant to the determination of the validity or invalidity of a presidential election.
  2. The court must take care not to usurp the jurisdiction of the lower courts in electoral disputes. The annulment of a presidential election will not necessarily vitiate the entire general election and need not occasion a constitutional crisis, as the authority to declare a presidential election invalid is granted by the Constitution itself. The petitioner is required to present a specific, concise and focused claim, which does not purport to extend the Supreme Court’s jurisdiction beyond the bounds set out in the Constitution. The Supreme Court will only grant orders specific to the Presidential election.
  3. According to Article 140 of the Constitution, it is clear that expedition of the presidential election disputes was of the essence. As the electoral process had led to the declaration of a winner who could not have assumed office pending the determination of the petition, the protracted holding on of a president-elect, as well as a retiring President, would have presented a state of anticipation and uncertainty, which would not have served the public interest.
  4. Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there had been non-compliance with the law, but that such failure of compliance had not affected the validity of the elections. This emerged from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies.Therefore the petitioner must have set out his petition by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.
  5. An electoral cause was established much in the same way as a civil cause where the legal burden rest on the petitioner, but depending on the effectiveness with which the petitioner discharged the burden, the evidential burden could keep shifting.  Ultimately, it was upon the court to determine whether a firm and unanswered case had been made. 
  6. The threshold of proof should in principle have been above the balance of probability though not as high as beyond reasonable doubt save that it would not have affected the normal standards where criminal charges linked to an election were in question.  In the case of data specific electoral requirements (such as the threshold specified in Article 138(4) of the Constitution for an outright win in the presidential election), the party that bore the legal burden of proof must have discharged it beyond any reasonable doubt.
  7. As a basic principle, it should not be for the court to determine who comes to occupy the presidential office, save that the Supreme Court, as the ultimate judicial forum, entrusted under the Supreme Court Act, 2011 (Act No. 7 of2011) with the obligation to assert the supremacy of the Constitution and the sovereignty of the people of Kenya must safeguard the electoral process and ensure that individuals accede to power in the presidential office in compliance with the law regarding elections. The Supreme Court must hold in reserve the authority, legitimacy and readiness to pronounce on the validity of the occupancy of that office, if there is any major breach of the electoral law, as provided in the Constitution and the governing law.
  8. The special circumstances in the presidential election petition required an insightful judicial approach and there may have been unlimited number of ways in which such an approach would have guided the court. The fundamental one was the fidelity to the terms of the Constitution and of such other law that objectively reflected the intent and purpose of the Constitution which represented the special and historic compact among the people and had expressly declared that all powers of governance emanated from the people and were to serve the people.
  9. The purpose of the pre-trial conference was set out in rule 10 of the Supreme Court (Presidential Election Petition) Rules, 2013. It is a preparatory forum used to lay the ground rules for the expeditious, fair and efficient disposal of the petition. The pre-trial conference enables the court, upon hearing the parties and if need be, on its motion to make appropriate orders and give directions for ensuring the fair determination of the dispute.
  10. The evidence on record portrayed that the tallying was indeed conducted in accordance with the law and the relocation of the political party agents had not undermined the credibility of the tallying nor provided a basis for annulling the outcome of the presidential election.
  11. The voter registration process was essentially transparent, accurate and verifiable and the voter register compiled from this process served to facilitate the conduct of free, fair and transparent elections. The explanations given on the discrepancies in the published registers were sound and in accordance with the laws.
  12. The court declined to make orders or grant reliefs sought by the petitioner, which would have occasioned conflicts between its jurisdiction and that of other lower courts especially as regarded other sets of election, which had proceeded on the same Voter Register.
  13. The conduct of the presidential election was not perfect, even though the election had been of the greatest interest to the Kenyan people who had voluntarily voted. Although there were many irregularities in the data and information capture during the registration process, they were not so substantial as to affect the credibility of the electoral process and besides, no credible evidence had been adduced to show that such irregularities were premeditated and introduced by the 1st respondent, for the purpose of causing prejudice to any particular candidate.
  14. In regard to rejected votes being added in computing the final results, once a ballot paper which had been cast did not satisfy the requirements under the law, it could not have been added in determining the election. The progressive character of the Constitution, and the interpretation of the provision of Article 138(4) of the Constitution which provided that a candidate shall be declared elected as president if the candidate receives more than half of all votes cast in the election and at least twenty-five per cent of the votes cast in each of more than half of the counties, referred only to valid votes cast, and did not include ballot papers, or votes cast but were later rejected for non-compliance with the terms of the governing law.
  15.  IEBC was entitled to resort to the use of the manual tallying system as the Constitution and the electoral had laws specifically given the IEBC the discretion to either work with a full electronic system or a manual system. The court recognized that due to the inherent failure of the electronic systems and the fact that the manual tallying had not been faulted as being erroneous, the computation could not have been challenged. Therefore the IEBC had no option after the transmission technology failed but to revert to the manual electoral system.
  16. The applicable law had entrusted the discretion to IEBC on the application of such technology as may be found appropriate. Since such technology has not yet achieved a level of reliability, it cannot as yet be considered a permanent or irreversible foundation for the conduct of the electoral process.
  17. It was clear that a fresh election under Article 140 (3) of the Constitution would have been triggered by the invalidation of the election of the declared president-elect by the Supreme Court following a successful petition against such election. Such a fresh election was built on the foundations of the invalidated election and could only have involved candidates who had participated in the original election. There would therefore have been no basis for a fresh nomination of candidates for the resultant electoral contest.
  18. According to the law, the fresh election would have been confined to the petitioner and the president-elect while all the remaining candidates who had not contested the election of the president-elect would be assumed to have either conceded defeat or acquiesced in the results as declared by the IEBC and such candidates could not have participated in the fresh election.
  19. There was no evidence to prove that the candidate declared as the president-elect had not obtained the basic vote threshold and therefore this justified his being declared the validly elected President of Kenya.
  20. The presidential election was conducted in a free, fair, transparent and credible manner in compliance with the provisions of the Constitution and all the relevant provisions of the law.
  21. The 3rd and 4th respondents were valid elected and declared as the President and Deputy President elect by the 2nd respondent in the presidential elections.
  22. Rejected votes should not have been included by the 2nd respondent in calculating and determining the final tallies in favour of each of the presidential candidates.

Petition disallowed. Presidential election results as declared by IEBC upheld.

Each party to the petition to bear their costs.

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