Opinion & Analysis

How Supreme Court ruling may affect other election petitions

Supreme Court of Kenya judges. FILE PHOTO | NMG
Supreme Court of Kenya judges. FILE PHOTO | NMG 

Kenya made history as the first African country to nullify a presidential election. The decision by the Supreme Court has been described by many as a “landmark ruling”. It is the fourth time globally that a perceived victory of a president-elect has been nullified by the courts.

The ruling came as a surprise and exposed the limits of the Constitution even after bestowing the Supreme Court with authority to overrule an election result. The Constitution does not provide in detail for the electoral body that takes part in the fresh election.

The declaration has seen a record 277 petitions, the highest in the land, compared to about 88 petitions in 2013. The petitions cannot be solely attributed to the court declaration, but it surely emboldened some petitioners in numerous ways.

First, the Supreme Court was clear that an election is about the process and not just the result. This is a significant shift from the pre-2017 position where Section 83 of the Elections Act placed heavy reliance on results.

Hence in post-2017 petitions, it will not be sufficient for a winner to say “I got the winning numbers, do not interfere with my numbers”. There must be a demonstration that those numbers were gained from a credible and lawful process.

Second, the ruling re-ignited debate on compliance with rules of procedure when in court. We saw the Supreme Court refuse to strike out documents that were filed after the time for filing had lapsed. The Supreme Court therefore took the opposite position taken by the same court in the 2013 presidential election.

This position would give hope to petitioners in other election petitions that small lapses in procedure will not lead to catastrophic results. Third, the ruling is likely to lead to a lot of technology-based petitions with requests for scrutiny. Petitioners may request to access the Independent Electoral and Boundaries Commission (IEBC) servers, the Kenya Integrated Elections Management System (KIEMS) kits used, the security of the technology and so forth.

Inspiration may be drawn from the application made in the Supreme Court by the opposition National Super Alliance (Nasa) coalition that led to orders requiring IEBC to grant access to its servers and KIEMS kits.

But that is not all. It has been suggested that the ruling will open floodgates for all and sundry to file petitions with a considerable measure of success.

Others might ask that Kenyans should go back and vote for the presidential candidates, governors, senators, woman representatives, members of parliament and members of county assembly.

The above suggestions are, however, highly improbable for a couple of reasons. First, there were six different elections on August 8. The only thing that was standard for all six elections was identification of voters. Everything else from ballot papers, ballot boxes, counting of votes, recording of votes, transmission of results, declaration of winners and issuance of certificates were different. There could be an error in the presidential election, but the error is not repeated in the election of the MCA for instance.

Therefore, where the facts before the Supreme Court differ, even slightly, with the facts in those other petitions, the decision of the Supreme Court can be easily distinguished. Second, courts in Kenya are limited by the Constitution and statute on what they can do an