Which is the right court to handle pre-election row?

To qualify to be elected President, deputy President, governor and deputy governor, the law requires that one must possess at least a degree from a university recognised in Kenya.

That is no doubt, as is clearly stated in Section 22(2) of the Elections Act. What remains questionable, however is whether the matter should be handled as a pre-election dispute or at the High Court, sitting as an election court.

This matter has refused to go away even after the Supreme Court dealt with it, in the gubernatorial election dispute involving Mohamed Abdi Mahamud, the Wajir Governor.

In a recent ruling, High Court judge James Makau dismissed a case against Taita Taveta governor Granton Samboja filed by Ethics and Anti-Corruption Commission (EACC). In the ruling, the judge said the High Court, sitting as a constitutional and Judicial Review Court, has no powers to nullify an election.

According to the judge, the matter should be handled by an election court, which is usually gazetted by Chief Justice to determine disputes, after the elections.

“I find that such is purely and solely placed upon the internal mechanisms set out by the law, which the petitioner (EACC) was expected to have invoked prior to proceeding to file the present petition in the Constitutional court and Human Rights division,” Justice Makau said.

The judge said the constitutional and human rights court, in his view, has no jurisdiction to annul the election of a governor or any elective post, set out in the constitution.

The matter is back in the High Court because soon after the case was dismissed, activist Okiya Omtatah filed a new petition saying fake academic certificates allegedly presented by goverbor Samboja, undermine the rule of law to the extent that they defeat the law which clearly provides how and by who the academic certifications should be issued.

The case against Mr Samboja has been tossed from one court to another for more than four years now. At first, the suit was filed before the High Court in Voi in 2017 but was dismissed by Justice Eric Ogola, because EACC had raised similar issues in a case filed in the High Court in Nairobi.

Then, Justice Ogola who was sitting at the election court, to determine issues raised in the election of Mr Samboja. “The case in Nairobi should proceed unhindered and should the petition succeed and the court finds that Mr Samboja did not have the academic qualifications, the law will take its proper cause,” the judge said.

He went ahead and heard the election petition, which raised alleged malpractices during the polls and later dismissed it.

Three years later, Justice Makau dismissed the case saying it should have been raised in the High Court, sitting as an election court.

For now, the issues raised, whether Mr Samboja holds a certificate in Project Management, Diploma in Human Resource Management and bachelor of Commerce degree, all from Kenyatta University, remain unresolved.

A similar matter played out in the Wajir gubernatorial case. The case went all the way to the Supreme Court and based on ruling by majority of judges, Mr Mahamud retained his seat. The High Court and Court of Appeal had ruled that he was not validly elected because he did not qualify for the position, for lack of a degree.

In Mr Mahamud’s case, the contention was that for him to be cleared to be a candidate for the position ahead of the August 2017 General Election, he allegedly obtained the academic papers fraudulently. It was argued that the governor forged degree certificates from Kampala University.

Petitioners in the case, who included former governor Ahmed Abdullahi, argued that Mr Mahamud had not acquired a degree, a fact that he admitted during his vetting for the position of Ambassador of Riyadh, Saudi Arabia, before the Parliamentary Departmental Committee on Defence and Foreign Relations, on September 3, 2014.

Mr Mahamud maintained that he was a graduate of Kampala University and had even gone ahead and acquired a second degree, a Masters in Diplomacy and International Relations, awarded on March 12, 2015.

In upholding the nullification of his election by High Court judge Alfred Mabeya, a bench of three judges of the Court of Appeal said it was Mr Mahamud alone who could have told the court when he was enrolled, at which university and to study which course and for what duration. However, he chose to stay away to avoid cross-examination in court.

“Only he could explain why, being a graduate, if one he was, as from 1st March 2012, he should have stated under oath to a Committee of Parliament more than two years later on September 2014 that he had enrolled at Kampala University but was yet to graduate,” Justices Philip Waki, Asike Makhandia and Patrick Kiage ruled.

The judges noted that despite saying he had acquired a Master’s degree in March 2015, Mr Mahamud, stated in his self-declaration form in 2017, that his highest academic qualification was a bachelor’s degree.

But four judges of the Supreme Court handed him a lifeline saying the matter should have been raised as a pre-election dispute. Justices Mohammed Ibrahim, J.B Ojwang, Smokin Wanjala and Njoki Ndung’u wondered why anyone would drag an entire county through a grueling election, only to turn around and later claim that one was not qualified in the first place.

“Is an election court to assume jurisdiction over such a dispute in such circumstances? We think not. If we were to allow contestants, or any other person, to consciously incubate a dispute, by-passing the Constitution, and originating it at an election court, that would surely render Article 88 (4) (e) of the Constitution inoperable,” the judges said.

The judges wondered by anyone would bother with the IEBC dispute tribunal or the Political Parties Dispute Tribunal (PPDT) if he or she can originate any dispute at an election court.

The top court went on to say that where a pre-election dispute has been conclusively resolved by the IEBC, PPDT, or the High Court sitting as a judicial review court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution, such dispute shall not be a ground in a petition to the election court.

The court also stated that where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution.

“Where a person knew or ought to have known of the facts forming the basis of a pre-election dispute, and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a petition to the election court,” the four judges ruled.

Mandatory prerequisite

They noted that the matter was raised before IEBC dispute resolution committee but it was dismissed because the petitioner- Abdirahman Moahmed Abdille- failed to prosecute the case.

But in a dissenting opinion, Chief Justice (retired) David Maraga said before the election court certifies under Section 83 of the Elections Act that the election was conducted in accordance with the constitutional principles on elections, it must satisfy itself that the constitutional criteria for such an election have been met at every stage.

The CJ observed that in contrast with IEBC, whose jurisdiction in electoral dispute resolution is limited to pre-election nomination disputes, the election court, actually audits the entire electoral process to determine the validity or integrity of the election concerned.

“This is why I said earlier on that the election courts have overarching jurisdiction to determine electoral disputes.

“I find that, contrary to the appellant’s contention, academic qualification being a mandatory prerequisite for eligibility to vie in a gubernatorial election grounded in the Constitution, it is a matter that goes to the root of a gubernatorial election that forms one of the grounds upon which such election can be challenged,” he said.

The same view was shared by Justice Isaac Lenaola but because the two were the minority, their decision was only persuasive but not binding.