The recent decision by the Supreme Court which settled the dispute on the conduct of the March 4 general election raises a lot of concern on the legal standard and doctrine which the court chose and which the Attorney General and respondents selectively submitted.
The true standard for the invalidation of a presidential election result, or any other election result for that matter, is much simpler than the AG asserts in his partisan submissions as a ‘friend of the court’. The standard is that of illegality and proof of any laws flouted by any of the parties to the dispute, including the electoral management body, in the process leading to the declaration of the winner.
Key decisions in the commonwealth and other jurisdictions suggest that the true standard is one of substantial compliance with the law and not the effect on the result. The 1975 case of Morgan and Simpson remains the cornerstone judgement in determining the validity of elections. In this case, it was determined that breaches of the law in and of themselves were sufficient to invalidate an entire election even if those breaches did not substantially affect the outcome of the result.
As submitted by the respondents in the consolidated petitions four and five, Morgan and Simpson remains the primary authoritative standard (locus classicus) in the determination of disputes relating to the process and result of elections. Therefore the primary standard for the invalidation of an election result has nothing to do with whether the gross irregularities observed on the part of the IEBC had a substantial effect on the law. The court only needs to be satisfied that there were indeed flagrant violations of electoral laws and regulations.
In the Besigye case, Justice Tsekoko in his dissenting opinion, stated that ‘allowing candidates licence to cheat even as little as cannot affect the results would render the election exercise a farce, a play thing or frivolous’. Tsekoko further asserted that: ‘tolerating cheating and fraud in elections can imply that holding elections itself is not desirable or necessary’.
The American cases of Welsh v McKenzie and Bennet v Yoshina set out similar standards with regard to the threshold for the invalidation of election results. In Welsh, the standard was whether the alleged poll irregularities implicate the very integrity of the election process reaching a point of patent and fundamental unfairness. Bennet was similar to the situation in Kenya in that it involved malfunctioning of voting machines. It was held that a fundamental injustice had been afflicted upon the petitioner even though the violations of electoral law and procedure were of a ‘garden variety’.
It is not in dispute that there were violations of electoral laws by the IEBC. The petitioners applied legitimate audio visual means to demonstrate these illegalities and further adduced incontrovertible evidence to demonstrate this fact. The court appears to have ignored this evidence and chartered the easier path towards the net effect of these violations of electoral law on the actual outcome of the elections.
Perhaps the court subconsciously took into account the socio-political effects of an invalidation of an election result and chose the more conservative path as advanced by the AG. Indeed, the law does not exist in a vacuum and the court may have been persuaded to apply the more conservative case law which says that even after establishing flagrant violations of the law, the petitioners must show that without these violations, a considerably different result would have emerged from the electoral process.
The doctrine of substantial effect on the result even though outdated and controverted may have been a safer way out for the court given the socio political and economic dynamics at play. After all, many in Kenya, especially the middle class and business community had taken the position that the country must move forward notwithstanding their dissatisfaction with the electoral process.
In addition to the desire to move on with life and business, despite the injustices by the electoral management body, the tension between peace and justice came into play behind the scenes. It was feared by the political establishment that an invalidation of the result would have led to widespread violence. Given that the courts operate in society, they may have been swayed towards this narrative and chose to abandon the established violation of law standard and adopt the inferior doctrine of substantial effect on results as part of a political calculation to avoid perceived violence and the detrimental economic effects of invalidation of the election results.
The effect of the electoral malpractices and upholding the result leaves the country balkanised along ethnic lines depending on their desired outcome and taking into account the gross irregularities. One half of the country feels disenfranchised and that their right to vote has been infringed by legitimising the failure of the election management body to abide by its laws and regulations.
The other half of the country is ecstatic about its coalition ascending to power despite flagrant breaches of the law. The result is that electoral malpractice, irregularity and illegality have been legitimised and any party to future electoral contests will have to either be complicit in the violation of election laws or become the victim of such violation. The disenfranchisement of voters is also an outcome which may lead the populace to significantly diminish its participation in future electoral processes.
More significantly, confidence in electoral justice has diminished while apathy and ambivalence has begun to take root. The gains made after 2007 through the partial implementation of new electoral laws and regulations suggested by the Kriegler report are on the verge of being lost. The courts and the electoral management body will have an uphill task in motivating public participation in elections and dispute resolution. The court had a duty to restore the integrity of elections which the electoral management body has distorted.
The writer is a Program Advisor at the Africa Centre for Open Governance (AfriCOG) which challenged the outcome of the March 4 presidential election.