Why Matungulu should not have held a by-election

Stephen Mutinda Mule           PHOTO: COURTESY

By WAHOME THUKU

Machakos, Kenya: The Court of Appeal has reversed a decision in which the High Court nullified the March 4, 2013 Matungulu Constituency elections. But the decision by three Court of Appeal judges on Friday, came three-and-a-half months too late as the constituency held a by-election in October last year and returned the incumbent Stephen Mutinda Mule to Parliament.

Mule of Wiper Democratic Movement won the new seat in Machakos County during the March polls. However, three losers Thomas Malinda Musau, Stephen Ndambuki Muli and John Nthuli Makenzi filed a petition at the High Court in Machakos, claiming the elections were marred with irregularities.

On July 30, last year Machakos judge Lilian Mutende allowed the petition and nullified the elections. The IEBC, a respondent in the case, immediately filed an appeal.

However, the by-election was held on October 17, before the appeal had been heard and determined. Mule was re-elected on the same party ticket.

 The Court of Appeal had to decide whether to hear the case or not as it had been overtaken by events. The IEBC, however, convinced it to hear the appeal and determine some legal questions.

The IEBC raised 17 grounds of appeal but the judges dealt with only these three questions: Whether the High Court judge erred in basing her decision on issues not raised by the petitioners, whether the there is a legal requirement that counterfoils of the used ballot papers should be stored in ballot boxes and whether there is a legal requirement that Form 35 used for the declaration of results at polling stations should bear the IEBC stamp.

The High Court judge had considered all the evidence tendered by the petitioner and concluded that it was not sufficient to prove any of the allegations. But new factual and legal issues arose on the counterfoils and the lack of the IEBC stamp on some of the Form 35 during the scrutiny of the ballots.

The IEBC argued that these issues were new and had not been raised by the petitioners.

The commission submitted that by unilaterally framing new issues for determination which were not raised or responded to by the parties, the judge had abandoned her role as an independent and impartial adjudicator and descended into the arena of conflict.

They submitted that the Judge overstepped her mandate in crafting a new issue not brought by the parties and basing it to nullify the election,  thereby essentially assisting the petitioner in an impermissible manner. The judges agreed.

A reversible error

 “The learned judge, no matter how well-intentioned, went well beyond the grounds raised by the petitioners and answered by the respondents before her and thereby determined the petition on the basis of matters not properly before her. To that extent, she committed a reversible error, and the appeal succeeds on that score,” they held.

On the issue of the counterfoils, the judges observed that it had also become an issue only after the recount ordered by the court had been concluded. The results of the recount confirmed that Mule had beaten Musau by 2,262 votes.

 “The grounds of the petition having all been dismissed and the recount having confirmed the 3rd respondent (the first herein) as the winner, the logical thing would have been for his election to be confirmed by the court. That did not happen. Instead, the learned judge embarked on the unilateralism we have already addressed,” the judges observed.

Lady Justice Mutende had ruled that the court could not be oblivious to the fact that there were discrepancies that were noted during the scrutiny and recount. One of the said discrepancies was that there were no counterfoils found in the ballot boxes for some eight polling stations.

 “Even though the learned judge properly stated that a presiding officer is required by Regulation 73(3) and (4) of the Elections (General) Regulations to seal counterfoils of the used ballot boxes in a tamper proof envelope for purposes of being delivered to the Returning Officer, she moved out of the regulations as currently formulated to find a fault where there was none,” the judges of appeal said.

The judge had stated that lack of the counterfoils was grave as the ballot boxes could not be ascertained and verified. She had ruled that missing counterfoils meant that ballot papers in ballot boxes were not the ones used by the voters.

 “With tremendous respect to the learned judge, she overstated that case in making such a sweeping statement,” the Court of Appeal judges said. They said the judge had relied on another judicial decision that was based on a law that had already been changed.

Under Regulation 73 (3) (c) the presiding officer is required to seal the counterfoils of the used ballot papers. And under sub regulation (4) he/she is required to deliver the ballot boxes and the tamper proof sealed envelopes to the returning officer who shall take charge of them.

 “It is quite clear to us that the ballot boxes are separate and apart from the sealed tamper proof envelopes. The two items are required to be delivered separately to the returning officer. There is no requirement that one be in the other,” the judges concluded.

 Under the election regulations the ballot box carrying the results is only required to contain the sealed tamper proof envelopes containing the various classes or categories of ballot papers.

 “The counterfoils of the used ballot papers are not required to be in the ballot box,” the judges held. They said putting counterfoil in some ballot boxes was a fortuitous happening and not a requirement of the law, hence agreed with the IEBC on that second point.

The High Court judge had also ruled that Forms 35 from 19 polling stations, not stamped with the IEBC stamp, invalidated the results.

Although she had pointed out that the law did not specifically state that the form should be stamped, she reasoned that a stamp impression on a document would be used to authenticate it hence the forms without IEBC stamp lacked approval from the commission and their validity was in question.

 “Once again, we are of the respectful view that the learned judge overstated the point and misstated the law,” the judges held.

The election regulation only requires the stamping of the counterfoil of the ballot papers and the ballot papers themselves before issuing them to a voter.  “There is no stamping requirement in the case of the Form 35. All that is required with regard to Form 35 as provided for in Regulation 79 is the signature of the presiding officer and the agents of the candidates,” the judges said.

They added: “We agree with the submission on behalf of the appellant that it is the signatures of the presiding officers and the agents that authenticate the Form 35. If any such forms were stamped, it was a gratuitous and superfluous discretionary or administrative act incapable of creating a statutory obligation, less still the invalidation of the Forms 35 that did not contain the stamp.”

Having agreed with the IEBC on the three questions, the court on Friday allowed the appeal and set aside the judgment of the High Court, effectively dismissing the petition filed against Mule after the March 4 polls.

The Court of Appeal ordered the three petitioners to pay costs of the petition and the appeal to the IEBC and the MP.  Had the IEBC awaited the Court of Appeal decision, Mutungulu constituency would not have held a by-election and taxpayers  would have been saved millions of shillings.