Kenya: Courts Remain Critical in the Electoral Processes

The 2022 General Election in Kenya, which for the first time has registered the highest number of independent candidates, given the lessons learnt from the previous elections where those taking the legal route to solve nomination challenges found themselves out of the contest, is likely to see courts playing a big role in representation battles.

The country has been investing heavily in making our electoral process credible, trusted, and acceptable by Kenyans, and a few individuals engaged in activities that undermine the electoral process and frustrate Kenyans’ aspiration for a peaceful post-election process through acts of commission or omission should be held accountable. Those who participate in circumventing the will of the people and it can be proved beyond a reasonable doubt before the courts need no protection. Thus, any attempts real or perceived, associated with voter rigging or manipulation of the electoral processes must be dealt with firmly. Access to information, transparency, commitment and

Given the situation, speedy and efficient resolution of elections-related disputes including getting rid of our fraudsters and criminals who commit election offenses within the political processes is critical in enhancing trust in the elections and to a large extent strengthening the democratization process in the country. We have been very weak on dealing with election offenses, either because of technicalities in the laws or just for fear of dealing with rowdy political players.

The petitions are largely because of reluctance by the political players to accept some of the results as declared by the IEBC, mistrust in some elections related processes, pressure by followers, carryovers by dissatisfied candidates from the Party primaries, fishy changes to the nomination lists, unfinished cases by the Political Parties Dispute Resolution Tribunal among others. As usual, there are going to be several by-elections across the country, which ideally must be done within six months. The outcomes of the petitions by for example former Nairobi Governor Mike Sonko at the East African Court of Justice or the implementation of the court ruling in favor of Reuben Kigame-might see us, as usual, continue with elections for the next many years.

Obviously, this behooves us to ask if the Judiciary is well prepared ahead of these likely petitions-already the JSC has trained several judges and magistrates on Election Dispute Resolution (EDR) and external lawyers/ advocates on EDR to ensure that petitions are expeditiously and efficiently handled. The Judiciary Committee on Elections whose membership is composed of all levels of the Judiciary and headed by a chairperson, assisted by a Deputy with a full secretariat headed by a Chief Executive Officer has been established and working. I am sure building on the work done just before the 2017 General Election including developing a bench book on EDR to guide the EDR Courts, development of Court (Presidential Election Petition) Rules 2017, Parliamentary & County assembly (Election Petition) Rules 2017 and Court of Appeal (Election Petition) Rules, 2017, guidelines for the media on how to cover the petitions in a professional manner including the protection of officers involved in the matters, all is promising.

I want to believe that these efforts will bear on the election dispute resolutions in the country within the Constitutional provisions in a very credible, transparent, and efficient manner, so that we restore trust in our democratization process.

One important thing the courts must do, which many of the relevant bodies have been unable to do, is deal firmly with elections offences including poll-related violence, voter bribery, corrupting election officials and fraud as provided for in various laws. While IEBC has tried during the campaign period and during the party primaries to bring some discipline in our political process, it remains a big challenge. Hopefully, IEBC and political parties will not shield some of the officials and agents who will be proved had allowed themselves to be misused during the voting process. Equally, those defaming others, or accusing others of electoral malpractices without proof should be held responsible.

Relevant bodies including the DPP, CID, EACC, media, NCIC, AG and witnesses must cooperate lawfully with the process to ensure justice is dispensed to those deserving. Efforts must be made to clean both the political and electoral processes in this country, so that, it becomes paying, satisfying and enjoyable to participate in the processes as a country, citizen and candidate.

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