Columnists

Start preparing for election petitions

case_2

It is over a year to the next General Election scheduled for August 2022. The campaigns, though not officially commenced, have been going on for some time. Indeed, in the country they never stop.

Every politician strategises on how to retain his or her post at the next election, win a more senior position or claim the one lost at the previous election or a new position altogether.

Due to the high pedestal that the country holds politicians and the accompanying largesse that they get to access, political contests are invariably a do-or-die affair.

Nobody prepares to lose or accept a loss easily. The first battlefront is the nominations stage. This is not only cutthroat but is also accompanied with intrigues.

It is even greater in regions which are strongholds of certain political parties, since in those areas, acquiring the political party ticket is akin to winning the subsequent election.

In 2017, those who lost the party primaries moved on to vie as independents since the route of defecting to other parties was almost closed by the 2016 election law amendments.

To demonstrate how important securing tickets were, many of those who lost appealed to the parties’ dispute resolution organs and after this to the Political Parties Dispute Tribunal and even to the courts. The number of cases that went to both the tribunal and the courts were in the hundreds and for that month normal business of the courts were put on the back burner.

The General Election even saw more disputes and petitions. From two presidential petitions to over 380 petitions for all the other elective positions, contestants sought court interventions to resolve their complaints. The implication of this was that courts became an arena for settling essentially political disputes. This has several consequences.

On the one hand, it provides a peaceful avenue for dealing with the disputes thereby avoiding violence. This was the rationale for enhancing the role and conduct of courts in resolving election disputes under the 2010 Constitution.

On the other hand, it politicises the Judiciary since politicians always want to win at all costs. By moving their disputes to the courts, there is the danger that those partisan disagreements will affect the image and independence of the courts and thus affect the rule of law and its adherence in the country.

The role and performance of the Judiciary in resolving election disputes is consequently a core component of election management.

From the early evidence, the 2022 elections are going to be extremely competitive and challenging. While the Judiciary must prepare for discharging its mandate, the one group that must up its game is the political class. A review of most petitions demonstrates that while politicians have many complaints about the electoral process, they do not invest sufficient energy in collecting the required evidence to make their case and thus enhance the petition process.

Consequently, their applications to courts end up being fishing expeditions, requesting the courts to help them collect information that they need to present their cases for determination. This ends up putting the Judiciary at the centre of the contestations.

It is necessary that as politicians put in place teams and measures to campaign and enable them to emerge victorious in the elections, they recognise that there will be disputes along the process. Either they can be sued, or they too may need the interventions of the courts in addressing some complaints they may have about the process or the outcome of the elections.

The evidence required is not always easy to come by. It also extends to nominations, campaigns, use of public resources, violence, bribery, and irregularities that occur not just on election day but long before.

Unfortunately, because every politician prepares to win, they do not always collect and store this evidence until when the time for filing an election petition comes and they then engage lawyers. The lawyers then must start looking for that information.