An effective electoral justice system is a key element in ensuring a free, fair and genuine democratic process.
It plays a decisive role in ensuring the stability of the political system and adherence to the legal framework. The electoral justice system thus contributes to the consolidation of democracy. Its role, although not new, has become recognised as a crucial factor in all democracies, whether emerging or established.
World over, no election has been without irregularities and this is confirmed by the numerous post electoral reports. There is indeed need for an elaborate electoral justice system to ensure a fair playground for all participants.
The National Electoral Justice System is responsible for everything to do with the organisation, management, and control of elections designed to allow for the authentic expression of the political will of the people.
Electoral justice encompassesthe means for preventing violations of the electoral framework, and the mechanisms aimed at resolving electoral disputes that arise from the breach of the provisions of the law.
In this regard, it includes formal mechanisms for electoral dispute resolutions by institutional means and informal ones, such as alternative electoral dispute resolution (AEDR) mechanisms.
To ensure the effectiveness, efficiency and sustainability of an electoral justice system, all these factors must be borne in mind.
An electoral justice system should also be reviewed periodically to ensure it guarantees the holding of free, fair and genuine elections.
An integrated, comprehensive and effective approach to designing and implementing an electoral justice system is only possible if the three periods of the electoral cycle are taken into account: pre-electoral, electoral and post-electoral.
Electoral challenges can be categorized as administrative, judicial, legislative and international. There may be many criteria for classifying the various electoral challenges.
The International Institute for Democracy and Electoral Assistance Handbook on Electoral Justice, for example, adopts a formal criterion to determine the type: the nature of the organ that hears and resolves the challenge.
It is important that every electoral justice system establishes means or measures to prevent or avoid electoral disputes. Some democracies place greater emphasis on preventive measures, others on corrective measures or electoral challenges, and still others on punitive measures or mechanisms for adjudicating liability.
In electoral justice, ‘principles’ mean the supreme and paramount ethical/political values of a legal order, a sector of it or an institution. They set a standard or inspire those to whom they are directed – either the candidates, voters in general or the electoral dispute resolution bodies in particular. Their observance or enforcement not only bestows legitimacy or moral or political authority, but also increases the likelihood, based on experience, that they will serve their purpose.
Principles of the EDR system refers to the fundamental values that help guarantee the holding of free, fair and genuine elections, strictly in keeping with the law.
An EDR system needs to adhere to fundamental principles on elections and to constitutionality, legality, judicial independence, due process of law and the right to a competent defence. The other is the principle of irrevocability [that once a question of law has been examined and decided, it should be deemed settled and closed from further argument].
Judicial means of bringing electoral challenges are provided for by law by which conflicting parties bring before a court or tribunal a dispute over an alleged error, irregularity, instance of wrongful conduct, deficiency or illegality in a certain electoral action or decision. The judicial body decides on the dispute in a final and impartial manner
A specialized electoral court contributes to the quality and appropriate timing of decisions and centres the attention of the political forces in the selection of its members, helping to give them adequate guarantees for their independence and impartiality.
On the other hand, however, the creation of such a court can encourage conflicts with the electoral management body and entail greater costs since it involves the creation of a new electoral court.
Formal dispute resolution systems are complemented by other means and mechanisms for managing electoral disputes, normally referred to as informal or alternative electoral dispute resolution mechanisms. The primary purpose is not to replace EDR systems but to play a complimentary role, especially in situations in which the formal systems face credibility, financial or time constraints.
Going forward electoral justice is important to the over 20 million registered voters as well as the rest of the Kenyan population.
This should be instituted right from the grassroots to the national level.
Dr Njau Gitu is an educator who also practices as a governance, policy and strategy adviser.
[email protected]
@GNjauGitu
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