Conflicting laws on time that marred poll petitions

By Wahome Thuku

Kenya: After the March 4, 2013 General Election, numerous petitions were filed challenging the outcome in various parts of the country.

One such petition was filed by Dr Thuo Mathenge, challenging the election of Nderitu Gachagua as Governor of Nyeri County.

Dr Mathenge, who was a candidate for the seat, filed the petition on March 8, 2013, only three days after Gachagua had been declared winner by the county returning officer. That was before the results were gazetted on March 13, 2013.

The Independent Electoral and Boundaries Commission (IEBC) filed an objection arguing that the petition was premature since the results had not been gazetted. The IEBC asked the court to strike it out, a position that was supported by Gachagua.

That petition added to a legal debate that was already developing in other cases regarding the time within which a petition should be filed.

Article 87(2) of the Constitution provides that election petitions other than those for the presidential seat shall be filed within 28 days after declaration of the results by the IEBC. But the Elections Act Section 76(1)(a) provided that the petition should be filed within 28 days after the results have been gazetted.

Some judges had decided in other petitions that the correct time was 28 days after the announcement of the results while others decided it was after the gazettement.

In Mathenge’s case, presiding judge James Wakiaga concurred with the IEBC and ruled that Dr Mathenge’s petition was premature since the results had not been gazetted.

The judge upheld the objection by the IEBC but declined to strike out the petition. The judge said, “To punish the petitioner for coming earlier based on misinterpretation of the law and the Constitution would be a miscarriage of justice…”

Still in Nyeri, another petition was filed by lawyer Peter King’ara challenging the election of Mary Wambui as Othaya MP. The parliamentary election results were declared on March 5, 2013, a day after the voting and Wambui was issued with a certificate.

Dismissed petition

Going by the Elections Act, King’ara waited for the results to be gazetted then filed the petition on April 8, 2013. However, going by Article 87(2) of the Constitution, the 28-day timeline should have expired on April 2, 2013. King’ara’s petition was therefore six days late under the Constitution.

On September 12, 2013, the High Court dismissed the petition and confirmed Wambui as the elected MP. The issue of time was not raised in court. King’ara filed an appeal at the Court of Appeal in Nyeri, citing 35 grounds.

On February 13, this year Court of Appeal judges nullified the election. The question of time did not come up.

Meanwhile on February 4, 2014, the Supreme Court declared Section 76(1)(a) of the Elections Act null and void as it contradicted Article 87(2) of the Constitution. That declaration was made in a petition filed by Mombasa Governor Hassan Ali Joho, who was defending his seat. The Supreme Court settled the matter holding that the 28-day timeframe should start from the date the elections results are announced by the returning officer.

On April 8, 2014 Wambui through her lawyer Cecil Miller filed a petition at the Supreme Court challenging the nullification of her election by the Court of Appeal.

This time she raised the time issue as one of the grounds of appeal, supporting her argument on the Supreme Court’s decision in the Joho case.

Miller argued that the Court of Appeal had erred by failing to hold that the proceedings were null and void since King’ara’s petition at the High Court was time-barred as per article 87(2) of the Constitution and that section 76(1)(a) of the Elections Act had been declared unconstitutional.

Miller said since that section of the Elections Act had been enacted after the Constitution was already in place, it was invalid. This time, the IEBC supported that position.

King’ara’s lawyer Kyalo Mbobu argued that the Constitution had empowered Parliament to enact the Elections Act and that it provided guidance in the conduct of electoral disputes.

“Where does justice lie when a certain section of the law had been followed, as it stood then, and the court found it unconstitutional?” he posed.

Vital element

Mbobu submitted that the issue of nullity of the initial petition was not raised by any of the parties at the Court of Appeal, hence could not be raised at the Supreme Court.

The Supreme Court identified four issues for determination. One of them was whether the proceedings were a nullity having been premised on a petition filed out of time.

It was clear the petition at the High Court had been filed outside the constitutional timeframe and under a section of the law that had since been declared unconstitutional. But could the nullification of that section in February 2014 retrospectively affect King’ara’s petition which was filed in April 2013?

The seven judges said, “This Court has been keen to ensure predictability, certainty, uniformity and stability in the application of the law. However, in appropriate cases, this Court may exercise its jurisdiction to give its constitutional interpretations retrospective or prospective effect. This derives from the broad mandate accorded this Court by the Constitution, and the Supreme Court Act, 2011.”

The Supreme Court reiterated that time was a vital element in the electoral process.

 They ruled that the effect of declaring Section 76(1)(a) unconstitutional had to go back to the time it was enacted.

“The declaration of invalidity must apply from the date of commencement of the Elections Act, that is December 2, 2011,” the Supreme Court held. However, that effect would apply on case-by-case basis to avoid re-opening concluded or determined election cases, they said.

With that conclusion, the judges found it unnecessary to determine the other issues they had highlighted. That decision is now the subject of a big debate in the legal fraternity.