Which way Supreme Court on the presidential election?
Supreme Court judges (from left) Isaac Lenaola, Smokin Wanjala, Philomena Mwilu (DCJ), Martha Koome (Chief Justice), Mohamed Ibrahim, Njoki Ndung’u and William Ouko on March 31, 2022.
Following the IEBC’s declaration that William Ruto won the recently held presidential election, the Azimio la Umoja coalition claimed that the election was “marred by widespread irregularities”. Among other things, Azimio claimed that the IEBC had no quorum to decide the election, four of the IEBC commissioners having walked out before the chairman made the declaration.
Azimio also alleged that the IEBC systems were hacked and that its officials committed electoral offenses. As Azimio, therefore, sees it, the result of the election should not be allowed to stand. In all likelihood, Azimio will move to the Supreme Court to challenge the result of the election.
Although the IEBC conducted a credible presidential election by many accounts, it encountered various challenges. For example, some polling stations opened late, while the biometric voter identification kits malfunctioned in various cases leading to the slow processing of voters and long queues. And there are the Azimio claims of irregularities. The question is, how will the Supreme Court resolve these challenges and claims of electoral misconduct?
Based on its decision in Raila Odinga v IEBC 2017, my argument is that it is highly unlikely that the Supreme Court will nullify the outcome of the recently held presidential election.
In Raila Odinga 2017, the Supreme Court took the approach that a petitioner will void an election if he or she proves that the election was conducted in a manner that “substantially violated” the law. This test is subjective since the court did not provide a threshold for what constitutes a “substantial violation”: whether or not the law has been substantially violated depends on how the court perceives it. In essence, the test calls for the court to make a judgment call on the seriousness of the violations.
In cases where the violations of the law are clear and cast doubt in the mind of the reasonable observer whether an election expressed the will of the electorate, this test may be easy to apply. This was, perhaps, the case in the 2017 presidential election, where the transmission of results was marred by all kinds of irregularities.
Much less pronounced
However, although the 2022 presidential election also encountered some violations of the law, these were arguable much less pronounced. Indeed, this election was by many accounts the most transparent that Kenya has held in the multi-party era, the presiding officers having transmitted the polling station results in record time and the IEBC having given the public access to its results transmission portal. Essentially, anyone with a calculator and acumen could establish the outcome of the presidential election. Thus, it is difficult to say that there were violations of the law that cast doubt in the minds of reasonable Kenyans that the election expressed the will of the electorate. In these circumstances, it will be exceedingly difficult for the Supreme Court to interfere with the election.
In Raila Odinga 2017, the Supreme Court annulled the presidential election on the basis that the election was not conducted in accordance with the Constitution and the Elections Act. Essentially, the petitioners based their case on section 83 of the Elections Act, which at the time provided that “No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election”.
Elections Act amendment
It should be noted that following the annulment of the presidential election, Parliament purported to amend this provision of the Elections Act. However, the High Court declared the amendment unconstitutional following a petition by Katiba Institute. Interestingly, the latest version of the Act retains the provision as amended by Parliament.
According to the Supreme Court in Raila Odinga 2017, Section 83 has two limbs, namely, compliance with the law on elections and irregularities that may affect the result of the election. Further, the Supreme Court determined that the two limbs of the provision are to be applied disjunctively. Thus, a petitioner who proves that the conduct of an election substantially violated the law, will on that ground alone, void an election.
Equally, a petitioner will void an election if he or she proves that although the election was conducted substantially in accordance with the law on elections, it was fraught with irregularities or illegalities that affected its results.
The Supreme Court, therefore, read the word “substantially” into Section 83, on the reasoning that it would not be realistic for trivial breaches to void an election, and that an election should only be voided on the first limb if the election were “a sham or travesty of an election”. From this perspective, an election can only be a true reflection of the will of the people if it is both “quantitatively and qualitatively in accordance with the Constitution”.
Verifying results
In Raila Odinga 2017, the Supreme Court decided that the IEBC substantially violated the law by failing to verify the results before declaring them and failing to electronically and simultaneously transmit the results from all the polling stations to the national tallying centre. As the Supreme Court saw it, these violations meant that the election was not a free expression of the will of the people. However, the Supreme Court did not fault the tabulation and tallying of votes. Thus, the Supreme Court did not consider the electoral process in its entirety.
In my view, the Supreme Court should not nullify a presidential election on the basis only of violations of the law with respect to aspects of the electoral process. Whether or not the IEBC has substantially violated the law requires the Supreme Court to consider the electoral process in its entirety.
As Honourable Judge Saffman stated in Babington & others v Cooper & others, “Breaches [of the electoral laws] have to be considered in the context of the big picture and not in the context of a discrete aspect of the electoral process”.
Substantial violation of law
A court should only determine that there was a substantial violation of the law where an election is so compromised that the ordinary person would condemn it as a sham or a travesty. That is, the court must be persuaded that no election, in fact, occurred. This, for example, would be the case where a substantial proportion of qualified voters have been disenfranchised, voters have been allowed to vote for a person who was not a candidate, or a qualified candidate has been disqualified on some illegal ground.
Seen from this perspective, the Supreme Court did not correctly apply the substantial violation test in Raila Odinga 2017 given that it nullified the election due to violations of the law relating only to a discrete aspect of the electoral process, namely the transmission and verification of results.
The Supreme Court needs to take a big picture approach to determine any petition challenging the outcome of the recently held presidential election. Should it do so, it will be difficult for it to conclude that this election, which was largely credible, was so compromised that no election in fact occurred, and the ordinary Kenyan would condemn it as a sham or a travesty.
The author is a former dean at University of Nairobi's School of Law and an advocate of the High Court of Kenya.
