Article 48 of the Constitution of Kenya 2010 guarantees access to justice for all citizens. Because access to justice is a right, Kenya should move from the English rule, where the loser pays litigation costs and adopt the American rule, where each party pays its own costs. Unless the loser was involved in vexatious litigation and litigation brought in bad faith.
However, the fact that we had a lot of elections petitionsafter 2017 elections is a good problem, and should not be punished. Unfortunately, one cannot reconcile the right to access justice, with the current ‘losers pay heavily norm’. Different losers in elections petitions are expected to pay an estimate of 141 million in the name of paying the winners’ attorney’s fees. The article questions the appropriateness of these fees to justice.
Consider the ballooning legal fees that petition losers are to pay the adversarial attorneys: Mather Karua in Kirinyaga Sh10 million; Sammy Ndugu of Laikipia Sh 12 million; Odima of Busia 12 million; Trans Zoia Simiyu a voter Sh10 million; Wavinya, Machakos Sh10 million; Omar Mombasa Sh8 million; Ranguma , Kisumu Sh10 million. Usually, anticipatory justice as one of forms of justice is always defined in relation to whether one can expect to be treated fairly by courts in future. Out of this anticipation, next elections people of limited means, will not petitionelections as much because of economic factors.
Free, fair elections
If you have a right to bring a claim, it has to be made accessible and affordable otherwise you are effectively being denied access to justice. This is against our constitutional values of open and democratic society, promotion of rule of law and accountability both of the electoral process and institutions like the I.E.B.C. Most of election petition is actually public interest litigation. The Constitution mandates the State to put in place mechanism to ensure proper free and fair elections. The rights protected by Article 38 of the constitutions are actualised through the electoral system set out in chapter seven titled; Representation of the people under article 81.
Under our democratic form of Government, an election is the ultimate expression of sovereignty of the people and the electoral system is designed to ascertain and implement the will of the people. The bedrock principle of election dispute resolutions is to ascertain the intent of the voters and to give effect whenever possible while upholding the principles that underlie a free and fair election. Election is referred to as the mother’s milk of democracy. Elections are very important to an extend that it is hard to envision our democracy without competitive elections. Different countries elections are governed by their different laws and institutions, including courts that together form electoral system.
As a result one can understand the high number of election petitions besides the presidential elections filled in different high courts of Kenya. Election being competition sometimes the competition is extended to courts, something that have not helped our courts but that is not the discussion of this article. Elections are very emotive and tense. Just like Kenya, many countries grapple with electoral reforms. Sometimes election petitions identify shortcomings of legislations, institutions and structures to improve them. It is unfair to discourage electoral petitions, yet the electoral law in Kenya is not well settled.
Even though no amount of fee will totally prevent litigations on election, but it can substantially reduce petition of elections of governors, parliamentarians etc. In my view the losers paying defendants fees will eventually affects and influence the society pursuit of justice. These rules must comply with the new constitutions, since courts have been inaccessible to many due to the high cost fees but constitution sought to open up courts for all Kenyans regardless of their social status.
One of the main hindrances to access to justice in Kenya has remained the general cost for one to litigate the case. However, for election petition losers are not just losing their cost, but are required in majority of the cases to pay attorney fees of the successful defendants.
If an election loser did not file a petition without merit, why should they be punished for losing the petition. Yet in reality success of petition is based on various factors, including who has the best lawyer and not necessarily on merit. Today’s losing argument and even descent is tomorrow’s majority opinion, they both take part in shaping the law. After all courts lend and borrows but both the winner’s argument and losers argument contribute to the rule of law.
I am not naïve to imagine that access to justice simply means formal courts. Article 159 of our constitution promotes alternative justice. Election petition can be one area where informal justice cannot handle well. Traditional elders cannot order repeat of elections, or declare real winner. Because election is competition is renders itself to adversarial legal system, where unfortunately justice only happens by chance and reconciliation is almost impossible.
Dr Ojwang is Dean Africa Nazarene University