Victor Bwire - Courts remain critical in the electoral processes

Speedy and efficient resolution of election-related disputes is vital.

In Summary

• The country has been investing heavily in making our electoral process credible, trusted, and acceptable to Kenyans.

• The petitions are largely because of the reluctance by the political players to accept some of the results declared by the IEBC, mistrust in some elections related processes and pressure from followers.

Kenya will go to the polls on August 9, 2022.
Kenya will go to the polls on August 9, 2022.
Image: THE STAR ILLUSTRATION

The 2022 General Election in Kenya, which has registered the highest number of independent candidates, is likely to see the courts playing a big role in representation battles. This comes after those taking the legal route to solve nomination challenges in previous years have found themselves out of the contest.

The country has been investing heavily in making our electoral process credible, trusted, and acceptable for Kenyans. Despite this, a few individuals undermine the electoral process and frustrate Kenyan's aspiration for peace post-election.

Those who participate in circumventing the will of the people, in situations where it can be proved beyond reasonable doubt, deserve no protection. Thus, any attempts real or perceived, associated with voter rigging or manipulation of the electoral process must be dealt with firmly. 

Given the situation, speedy and efficient resolution of election-related disputes, is critical in enhancing faith in election results. This increased trust and reliability would go far in strengthening the democratisation process in the country.

We have been very weak on dealing with election offences, either because of technicalities in the law or fear of dealing with rowdy, and often influential, political players.

The petitions seen are largely because of a reluctance by political players to accept some of the results declared by the IEBC because mistrust in some elections related processes and pressure from followers.

Other factors undermining the validity of results, leading to court cases, include carry overs by dissatisfied candidates from the party primaries, suspicious changes to nomination lists or unfinished cases by the Political Parties Dispute Resolution Tribunal.

As usual, there are going to be several bye elections across the country, which are ideally carried out within six months. The outcomes of the petitions such as former Nairobi Governor Mike Sonko's case at the East African Court of Justice see us, as usual, continuing with elections for  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 has been established and is working.

I am sure building on the work done 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 we are getting closer to transparent and more acceptable election results. 

Furthermore, additional guidelines for the media on how to cover the petitions in a professional manner include the protection of officers involved in the matters add to the preparation for this years elections.

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 democratisation process.

One important thing the courts must do, which many of the relevant bodies have been unable to do so far, is deal firmly with elections offences including poll related violence, voter bribery, election official corruption and fraud as outlined in various laws.

While IEBC has tried to bring some discipline during the campaign period and party primaries it remains a big challenge. Hopefully IEBC and political parties will not shield officials or agents who 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 a process to ensure justice is dispensed. 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.