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Verdict on Kenya’s presidential election petition: Five reasons the judgment fails the legal test

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Wachira Maina. Photo/FILE

Wachira Maina. Photo/FILE 

By Wachira Maina

Posted  Saturday, April 20   2013 at  12:37

In Summary

This article offers five reasons for this conclusion:

  • Supreme Court’s reliance on backward looking, mean-spirited, cramped Nigerian precedent.
  • Tolerant and uncritical acceptance of the IEBC’s explanations on the voter registers.
  • Lack of clarity about IEBC’s duty to ensure that final results could be verified against provisional results.
  • The Court’s use of subsidiary legislation to limit the meaning of “votes cast,” an unambiguous phrase in the Constitution.
  • The evidential foreclosure that the Court imposes on itself by taking judicial notice of technology failures instead of treating IEBC as spurious.

Sadly, as the saying is, in this judgment, the Supreme Court has only given us reasons that sound good, not good, sound reasons.

Justice Robert H. Jackson once said of the US Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.”

The infallibility that finality brings may, in the long view, be one of the few merits of the Supreme Court’s much awaited judgment on the presidential petitions.

Sixty per cent of the judgment, by length, is a leisurely rehash of the facts and arguments made by the parties in court. Everything else is given short shrift: Seven paragraphs are spent on reviewing and resolving the issue of the failed technology; another nine paragraphs dispose of the IEBC’s discretion to do manual tallies; 11 paragraphs are dedicated to the voters register and, astonishingly for a court given to brevity, 27 paragraphs are set aside to explain why rejected votes must not count in computing presidential percentages.

To paraphrase an old cynic’s quip, this judgment is both detailed and important, but the parts that are detailed are not important and those that are important are not detailed.

This article offers five reasons for this conclusion:

First, there is the Court’s reliance on extremely backward Nigerian authorities urged on it by the Attorney General, Prof Githu Muigai, acting as amicus curiae. Second, there is its tolerant and uncritical acceptance of the IEBC’s explanations about the ever-fluid totals in multiple voters’ registers and what this means in practice. Third, there is the question of tallying and especially, what the Court’s own tallies show but is not properly reflected in the judgment. Fourth, there is the Court’s use of subsidiary legislation to limit the meaning of “votes cast,” an unambiguous phrase in the Constitution. Finally, there is evidential foreclosure that the Court imposes on itself by taking judicial notice of technology failures instead of treating IEBC as spurious, as urged by petitioners.

Backward looking, mean-spirited, cramped Nigerian precedent

Let us start at the beginning. Central to the Court’s judgment is what the petitioners needed to prove and to what standard they should have proved it in order to get a remedy. The Court says that the answer to that question is “well exemplified” in Nigerian case law.

Apropos of Nigerian inspiration, it concludes that a petitioner must prove that the law was not complied with and also that the failure to comply affected the validity of the elections. That is the legal burden. What is the standard of proof needed? The court seems unsure.

In principle, it says, this should be above a “balance of probability” but below “beyond reasonable doubt.” This means a place in-between the standard in a civil case and that in a criminal case.

But the Supreme Court has also invented a dramatic new standard for the presidential election. A petitioner challenging a president-elect who has won in a first round election, as President Uhuru Kenyatta did, must provide proof beyond reasonable doubt. But what constitutional principle is the court vindicating here? None that one can readily see.

All election results are about data. There are no gradations of winning. Why, then, in principle, should exactness in electoral thresholds, say 50 per cent plus one and 25 per cent in at least half the counties impose on a presidential petitioner the duty to discharge a higher standard of proof – than say an MP challenging a victor chosen on the basis of “a majority of votes cast?”

Or maybe this is the Court’s method of radically curtailing the number of petitions that can be brought against the president-elect. Since most of the evidence of wrongdoing will be in the hands of the IEBC — or a similar body — it is extremely difficult to see how a petitioner could ever succeed.

This cannot be what Kenyans thought a new Constitution was meant to do, shield an elected leader from being subject to an election petition. In fact, it seems more likely than not, that Kenya will never have a run-off election so long as a candidate can, by hook or crook, get himself declared elected. The onerous standard of proof would be incredibly difficult to discharge.

The effect of this new standard is that a petitioner who questions the IEBC’s maths, as Raila Odinga and Gladwell Otieno did, is then subject to the same standard of proof as a person who says that a president-elect has won by corruption, bribery and conmanship.

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