To win an election petition besides the law, grasp the art of seduction

Supreme Court Judges during the presidential petition at the supreme court, Nairobi on 2nd September 2022. [David Gichuru, Standard]

With the Supreme Court decision made and the 5th President of Kenya about to be sworn in, it is fitting that we reflect on 5 do’s and don’ts of a presidential election petition, from observing what went on in Raila 4, this being the 4th petition since the 2010 Constitution.

The first lesson is that every candidate should assume that they can lose the election. They should therefore start collecting evidence in support of a possible petition before, during and after elections day. 

The timelines for preparing and filing a presidential petition are so short that one cannot start putting together a team, looking for evidence and working on a coherent legal strategy after declaration of results.

Many violations of the Elections Act occur during campaigns, on election day and many at counting, tallying and declaration.  By the time a declaration is done, one should have their draft petition in place so that they are just making final adjustments. Failing this, one may end up with a hydra-headed petition, with dodgy evidence, conflicting prayers and an unclear strategy.

Secondly, the case to be presented must be clear both in terms of how it attacks the election process, and also in how it impeaches the consequent results. Counsel must prepare for any focus the court may take and never read too much into historical approaches by the court. In 2013 for instance, the court focused on the results and did not lay too much emphasis on the process, thus affirming the IEBC declaration.

In 2017, the court did not even debate the numbers. In their view, the process was so problematic, that it was sufficient to nullify the elections. Interestingly, Section 83 of the Elections Act, which was the basis of the nullification in 2017 had been repealed by this year’s petition.

Many of us were curious on the approach the court would take. For instance, the court accepted that the electoral commission was dysfunctional and indicated it would speak to the issue in the full judgement, but then indicated that this dysfunction did not impact the results.

Thirdly, a petitioner must ensure that their evidence is unimpeachable. To this end, counsel must take personal responsibility for the integrity of evidence they present to court, especially if it comprises their own averments.

All manner of gratuitous supporters and hangers on want a piece of the action and can submit dubious material to counsel. Nothing is more embarrassing to an advocate than being called out for unreliable, much worse, manufactured evidence.

Fourthly, counsel must focus on the issues the court identifies. One of the most dangerous approaches that advocates make is to get distracted from the identified issues or spend too much time on some issues.

Ultimately, the decision of the court is reduced to responses to the identified issues. The public out there may be entertained by some peripheral issues, but they add no value to the case before the court.

Fifthly, counsel must remember that lawyering is art. Getting the court to exercise discretion in your favour is sometimes akin to seduction. It is not enough to be right; you must make your case in ways that make the court want to assist you. In this respect, teamwork is key.

Like a football game, a team must know who possesses which gifts for which part of play. It does not help to have too hard-fact lawyers when what you need are crooners!

For instance, this year’s petition was based primarily on technology and numbers.  Ease with and expertise on these two issues was most critical. Finally, to quote senior counsel Abdikadir Mohamed, cases are stories; the story that wins tells more credible narrative on the basis of evidence and presentation mode.

Good cases have been lost because they were poorly presented, but woe unto the lawyer who has a weak case. The court will easily see through it and no poetry, rhyme or lyric will your case win. Over to counsels.