Think beyond Supreme Court ruling for other Aug 8 election petitions

Kenya has made history as the first African country to nullify a presidential election. The decision arrived by the Supreme Court of Kenya on August 25 is described by many as a “landmark ruling”.

It is the fourth time globally that a perceived victory of a President-elect has been stopped by the courts.

The ruling by the top most court came in as a surprise and exposed the limits of the Kenyan Constitution even after bestowing the Supreme Court with authority to overrule an election result.

The Constitution does not provide in detail the electoral body that takes part in the fresh election. Opinion is divided.

The declaration has seen a record 277 petitions compared to about 88 petitions in 2013. The petitions cannot be solely attributed to the Court declaration but it sure did embolden 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.

So that 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 the debate on compliance with rules of procedure when in court. We saw the Supreme Court refuse to strike out documents which 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 challenging other elections 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 IEBC servers, the 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 Nasa coalition that led to orders requiring the 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, like former Justice minister Martha Karua in her petition against Kirinyaga Governor Anne Waiguru, have suggested that the entire elections of August 8 should be declared invalid.

In other words, 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. 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 differs, 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 and cannot do. For instance, no court in Kenya can nullify the presidential election other than the Supreme Court.

READ: Courts have their work cut out as 277 election petitions filed

Similarly, the Supreme Court cannot nullify any other election unless it is on appeal. Because of these limits, there is not a single court in the country that is competent to nullify all the elections carried out for all the elective posts.

Lastly, courts resolve issues brought before them by people who have the capacity.

Therefore, for an election to be nullified, there must be a petition specific to that particular post. The person bringing that petition must also demonstrate his or her capacity to bring the petition.

For instance, a governor contestant in Mombasa County cannot challenge the election of the Governor in Nyeri County.

It remains vital to wait and see the reasoned decision of the Supreme Court which is expected Tuesday before drawing any final conclusions.

Billy Kongere is a Partner at MMC Africa Law.