Kenya General Election Series: Petitioning Justice Mutunga

Winston Churchill once commented at the height of WWII: “Never has so much been owed to so few.” Perhaps this would be the same sentiments held by most Kenyans after the Supreme Court of Kenya renders its decision on a Presidential Election petition filed there. Coalition for Reforms and Democracy (CORD) presidential flag bearer has petitioned the court to set aside the declaration of Jubilee Coalitions flag bearer, Uhuru Kenyatta as President-Elect.

The facts of the case emanate from the declaration of Uhuru Kenyatta as President-Elect of the Republic of Kenya. Since that time sympathizers and critics of both camps exchanged few choice words in both material and virtual reality. With each side exuding confidence that the court would rule in their favour, the debate has often degenerated into personality attacks devoid of decorum. In post I seek to shed light on the process so that people are not misled by sycophants in both camps on the position if the law.

First, the Supreme Court of Kenya has exclusive and original jurisdiction to determine all matters arising from a presidential election petition. This means there is no other court that can adjudicate this matter legally. Thus the court which currently has 6 judges holds the fate of the political leadership of this country. Depending on how they decide on the matter, Kenya could be swearing in a new president or head back to the polls for a fresh election.

Secondly, one must petition on certain specified grounds. According to rule 12 of the Supreme Court (Presidential Election Petition) Rules the grounds are validity of the presidential elections or challenging the declaration of a run-off in case there was no clear winner. As CORD’s petition deals with the validity of the presidential elections, I need not say much on the latter.

In the same breath, there are other sub-rules provided by rule 12. These include: validity of the conduct of presidential election, validity of the qualification of the President-Elect, commission of an election offence, validity of the nomination of a presidential candidate and other grounds as long as they are not frivolous, vexatious and scandalous. CORD’s petition, according to their public rallies, appears to be confined to commission of an election offence as well as validity of the conduct of the presidential election.

Thirdly, the court can decide either to dismiss the petition or to declare null and void the declaration of one Uhuru Kenyatta as the President-Elect. If the court dismisses the, to the chagrin of CORD supporters, the President-Elect would be sworn on the 7th day preceding the day the decision was made. If the court, however, find CORDs petition meritorious then it will be back to the polls within 60 days. But this would not be as straight forward as many seem to assume.

CORD accuses the Independent Electoral and Boundary Commission (IEBC) of bungling this election. In fact some of its top brass have likened to the defunct Electoral Commission of Kenya (ECK). How then can this same body conduct fresh credible elections? Would we be looking to recruit others to conduct the polls?

The voter register has also been faulted as having been tampered with. Could this mean that a fresh registration of voters would have to be conducted? How feasible is it to do it and produce a register within 60 days? These and other issues plague the decision of the court.

Before you roll your eyes and dismiss me as a Jubilee apologist as many have done, I would like you carefully consider the allegations and ramifications of each of the grounds presented before the Supreme Court for determination. If one says that the body conducting elections is defunct and the court agrees, wouldn’t it make legal sense to choose another one? Wouldn’t this recruitment have to pass through Parliament for approval? Would this process take 60 days as contemplated by the Constitution? Think about it.

Finally, there is the matter of what happens in the mean. There already exists a war of words brewing between the Prime Minister who is also CORDs presidential flag bearer and Francis Kimemia who is the Head of Civil Service. The latter is of the opinion that all Ministers and Assistant Ministers elected to various posts should resign their posts with immediate effect. This is because the Constitution 2010 does not allow one to hold to state offices at the same time. For your reading you may look at articles 153(3) and 180(2) as read with 193(2).

Be that as it may, the Prime Minister is adamant that the term of the Grand Coalition is not yet over, citing the same constitution. Section 12 of the 6th Schedule says that they are to hold office “…until the 1st general elections held under this constitution…”Some have interpreted it to mean until the President-Elect is sworn in and chooses a cabinet while other interpret it to mean the holding of the election.

It is of utmost importance that peace is maintained all through this process. I hope and pray that justice is not only done but is seen to be done. 

Kenya General Elections Series: Election to the Office of the President

After the first presidential debate ever in Kenya, the battle lines have been drawn and others reinforced. Officially Kenya has 8 presidential candidates after the presentation of their papers to the Independent Electoral and Boundaries Commission of Kenya (IEBC). Now focus turns to the procedure of the election to the office of the President of the Republic of Kenya. What are the details of this procedure?

Article 138 of the Constitution is conveniently preceded by the heading ‘procedure at presidential election’. This article details the procedure from presentation of papers to the polling day. It provides clarity and predictability to the business of electing Kenya’s commander-in-chief.

Clause 1 of article 138 states that where one candidate is nominated as a presidential candidate, then he/she stands elected. This means that Kenyans need not go to the polls because what would be the point in that? However as mentioned earlier, there are 8 presidential candidates which means Kenyans cannot avoid going to the polls in accordance with article 138(2). This clause stipulates that if there are two or more nominated candidates, an election must be held in each constituency.

The date and time of these elections are also set by the constitution. They are supposed to be held on the 2nd Tuesday, in August of every 5th year. Needless to point out (but I choose to), these elections do not fit into this constitutional specification. This was a result of a court ruling that stipulated that elections must be held within 60 days after the end of 10th parliament’s term. IEBC picked out March 4th for the polling date. Hopefully this legal anomaly will be corrected before the next general elections.

Polling is via secret ballot and only registered voters are allowed to participate. The IEBC is the only body legally mandated to count, tally and officially announce the results of elections. In the case of the presidential elections, they have up to 7 days after the conclusion of polling to announce the result. In other words, within 7 days after the polling date, IEBC must announced a winner and provide a written notification to the Chief Justice and the incumbent President to that effect.

But how does one win? Clause 4 of the article provides a two pronged test. The first is whether the candidates garners more than half (50%) of the total votes cast. The other is whether he/she gets 25% or more of all the votes cast in at least 24 of the 47 counties in Kenya.

If none of the candidates manage to achieve the foregoing, then within 30 days a run off must be executed. The race would be between the person(s) who received the greatest number of votes and the one(s) who received the second greatest number of votes. In the highly improbable but possible event that two or more candidates receive the exact same number of votes which are calculated to be the greatest number, then the one(s) with a figure that is lower are barred from running even though they are technically second. The candidate with a simple majority at the run off wins the election.

Opinion polls have often projected that none of the candidates can win this election in the first round. If they are accurate and that is what happens after the 4th of March, it means Kenyans would be headed to another presidential election latest by April the 3rd. This means the incumbent would hold office until after that date in April.

After the presidential election, those aggrieved by the results have 7 days to file a petition in the Supreme Court (article 140 (1)). The court has 14 days to render a decision and should it decide to invalidate the results, fresh elections would be held within 60 days. Note that there is no appeal to this decision.

There are certain circumstances in which the presidential election can be cancelled. These are: if no one is nominated to run for this office, if any candidate or his/her running mate dies on or before the March 4th or if a President-elect dies before assuming office. In the above cases, fresh elections are to be held within 60 days.

Where the presidential election is concluded and there is no petition or if the petition is dismissed there is the issue of swearing in. The 2007 presidential swearing in ceremony left a bad taste in many Kenyans’ mouths. This time round, it must be done in public and the oath or affirmation of office administered by the Chief Justice or his deputy in his absence.

In conclusion, I implore Kenyans to the peace as we enter our 50th year of independence. Vote wisely as you do so peacefully.