Why observers are critical as the Supreme Court handles poll petition

On 31st August 2022, Chief Justice and the President of the Supreme Court of Kenya (SCOK) Martha Koome warmly welcomed the Commonwealth observers to the presidential poll petition.

While informing them that she had welcomed them in absentia, the previous day, she recognised their presence and thanked them for finding time to observe the petition, noting that their presence was encouraging and a show of solidarity in their quest to ensure respect of the rule of law, constitutionalism and safeguarding public institutions of governance and democracy.

It is the first time I have seen the Commonwealth dispatch observers to the SCOK, so allow me to embrace this new development with the SCOK's enthusiasm and the same way we embrace international elections observers.

The main role of observers in any process is to help safeguard its integrity and record any incidences of non-compliance with the law, regulations and procedures and to help enhance transparency in the process through scrutiny and increase credibility and legitimacy on the process and outcome.

Observers are invited and accredited by the body whose process they are going to observe and are expected to adhere to the Constitution and laws of the inviting country, to be independent, impartial and accountable and prepare a report of their observations, recommending ways of improving process and pointing out any serious areas that require urgent interventions.

The presence of observers also sends a subtle message to those being observed, that the international community deems the process important and is watching every step of it and expects every step to play out transparently, accountably and to strictly comply with and adhere to the Constitution, laws, regulations and procedures.

In many countries, observers are not required if in the opinion of the sending institutions, the countries are mature democracies and respect of the rule of law is unquestionable.

Observers are also important in cases where parties may not accept the outcome of the processes being observed and in places with intractable disputes and the opposing sides are intransigent.

Perhaps our case is unique but not unlike the past situations where similar issues have ended up in court, although the allegations of hacking and unauthorised access into IEBC official portals are quite new as is the fact that the majority, four, of the commissioners broke ranks with their chairperson.

The SCOK is independent and impartial and delivers justice in accordance with the Constitution and its decisions are final. This makes very weighty its decisions, and every hope and aspiration of the candidates and their supporters literally lies with the four honourable men and three honourable women of SCOK.

Either side expects to win the petition and have each assembled a team of eminently qualified and experienced advocates to argue their cases convincingly.

There are several possible outcomes of this petition. The SCOK can confirm the announced winner, declare no one won the election by achieving 50 per cent plus one and order a round two election, nullify the election and order a fresh one or decide that the first two appellants won the election and declare them as winners without requiring a fresh election.

Whatever the decision, the opposing sides must satisfy themselves that the SCOK arrived at the decision together (collegially), in accordance and compliance with the Constitution and the laws and the process was impartial, accountable and transparent.

The statements and the final report of the observers, expected to be timely, impartial, and independent, will assure the parties, irrespective of the outcome, that the SCOK's decision met integrity and credibility thresholds.

This is why their role is most welcome and expected to provide the assurances. Finally, since observers usually share best practices and international law and guidelines relating to the processes they are observing, we expect them to provide recommendations on the best ways to handle the contested issues - transmission, tallying, verification and announcement of presidential elections results; this will be in line with the international practice by observers.