Courts now given power to declare election winners

Mombasa Chief Magistrate Stephen Riech (right) and Senior Resident Magistrate Richard Odenyo during a training seminar on election petitions on Saturday in Mombasa. [PHOTO: KEVIN ODIT/STANDARD]

By Willis Oketch

KENYA: Judges who will preside over election petitions after the March 4 General Election have powers to declare a winner after a recount of ballot papers in court.

Magistrates will also be allowed to preside over petitions following an amendment of judicial rules that only allowed judges.

The chairman of the Judiciary’s Working Committee on Election Preparation, Justice David Majanja, said the old rules, which provided for a by-election even after re-count showed who had won, have been removed.

The Judiciary is training judges and magistrates on election laws and new procedures of handling poll petitions.

Justice Majanja made the announcement in Mombasa on Saturday evening while addressing judicial officers during a seminar on handling election petitions.

He said previous rules that compelled courts to order by-elections were unfair to politicians who had clearly won.

“The rules have now been amended to give judicial officers powers to declare a petitioner winner if a recount of ballot papers shows that there was no proper counting,” said Majanja.

Most of the judges and magistrates attending the seminar admitted ignorance of these new rules created by the Rules Committee of the High Court.

Many petitions

Among the politicians who suffered because of the old rule are Hassan Mwanyoha of ODM in Matuga, who emerged the winner during the recount of votes in court in the 2007 elections as well as Daniel Karaba of the former Kutus Kerugoya constituency, who lost his seat after the loser was declared winner by the returning officer.

The case presided by Justice Mohamed Ibrahim found that Ali Mwakwere did not win the Matuga seat and ordered a by-election, which Mwakwere won.

Majanja told 60 magistrates from Mombasa, Malindi, Kilifi, Lamu, Voi, Makindu, Garissa and Kwale to expect many petitions, which must be concluded within six months.

“We are putting in place mechanisms to enable us deal with election disputes effectively because we expect between 500 and 600 cases,” said Majanja.

“The election law was amended to give magistrates the necessary jurisdiction in anticipation of the huge number of election related offences, petitions and disputes occasioned by the devolved political dispensation,” said Majanja.

More workload

“The conferment of such jurisdiction to the magistrates not only affirms the important role this cadre of judicial officers play in the dispensation of justice, but is reflective of the faith and desire the Kenya people have in just and expeditious determination of election related disputes,” the judge said.

He said the Judiciary seeks to prepare itself for expected petitions by training magistrates and judges on election laws.

Majanja said presiding judges would be expected to proceed with the cases on a daily basis to conclude them on time. He said each station would identify magistrates and judges who will preside over the petitions and forward their names to the Chief Justice for publishing in the Kenya gazette.

Addressing the same meeting, Mombasa Chief Magistrate Stephen Riech said since the cases would attract public attention, an elections court would be put up at the old court in Mombasa to give room for more people.

The Chief Magistrate said the Judiciary had worked out mechanism to deal with the election disputes to avoid blames about delays.

He said Kenyas became angry with the chairman of the defunct Electoral Commission of Kenya Mr Samuel Kivuitu, returning officers, ODM and PNU agents in 2007.

“Within a short time, we became angry with everybody and everything and decided to sort out our frustration by violence leading to the infamous post-election violence,” said Riech.

He said judicial officers would be trained to have the necessary professional, psychological and mental preparedness for the demanding task.

Riech said this election was significant as it is conducted under the new Constitution, which has created many new offices. He said since Kenyans value elections, courts intervention would make a difference.

“It is our hope the election will reflect the people’s will to yield results that are acceptable. More importantly though, it is the manner and timeliness of intervention by the courts that will make the difference in instances where election disputes will arise,” said Riech.

Vetting pressure

He asked the magistrates to ensure they delivered judgments within a short time to redeem the name of Judiciary, which had been dented.

“Even with the pressure of vetting, judicial officers have continued to give their best and made decisions that have restored confidence in the Judiciary,” said Riech

He said Chief Justice Willy Mutunga had instructed that cases related to elections should be given priority.

“In view of the disputes we anticipate before and after the election all judicial officers will have extra work load whether or not they are appointed to electoral bench,” said Riech.

Riech admitted some cases might suffer after the election because some officers might be deployed in other areas.