Supreme Court faulted over presidential petition

By JOACKIM BWANA

Kenya: Participants at a legal forum organised by the University of Nairobi’s School of Law critiqued the Supreme Court’s decision in the presidential election petition filed by Raila Odinga against the Independent Electoral and Boundaries Commission.

They suggested the case was rushed and lacked comprehensive investigations into IEBC’s provisional and final results.

The forum also heard that political parties lacked the capacity to collect evidence.

In an earlier report addressing the state of constitutionalism and elections in East Africa, Chief Justice Willy Mutunga noted that time was of the essence in adjudicating a presidential election petition and, therefore, it was important for the case to be presented within statutory timelines.

The chief justice said the greatest challenge was collecting evidence for an election petition, as political parties in Kenya are nascent.

“Kenya’s political party system is what can be called a ‘shelf’ system, where parties are only registered to wait for the next election or by-election and this minimises the capacity to exploit institutional strengths for prosecuting petitions,” Dr Mutunga said.

According to a report presented by constitutional lawyer Wachira Maina, the fundamental problem was that IEBC had four different registers dated between December 15, 2012, and March 19, 2013.

Wachira said the Supreme Court overlooked the election irregularities and accepted the register from IEBC yet no single polling station agent was called in as a witness to sign Form 34, a declaration form, or swear an affidavit.

He said that by December 18, 2012, during a verification process of registered voters, 13,000 voters from Mombasa and Nyanza were removed from the register, 50,000 from Nairobi and 2,000 from Western. In addition, 16,000 voters were added in Rift Valley, 44,200 in Eastern and 6,600 in North Eastern regions.

Both cases

Kwasi Prempeh from Ghana, a professor of law at Seton Hall University School of Law, Newark New Jersey (USA), said Kenya’s petition case was similar to Ghana’s as both cases were not approached in an administrative manner.

Prof Prempeh said the court, after finding irregularities in IEBC’s tallying process, should have asked both parties involved in the petition for remedies like re-tallying of votes or re-voting rather than ruling the elections to be free and fair, a fact that left majority of the people dissatisfied with the ruling.

High Court of Kenya advocate Ken Nyaundi said political parties that were involved in the petition do not escape blame.

He said political parties failed to utilise the rights and opportunity they had to inspect and rectify the register.