Election Disputes in Kenya and the Supreme Court jurisprudence as an Electoral Court (original) (raw)
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Egerton University law journal, 2022
Elections are one of the most essential ingredients of democracy however it's conduct has remained a challenge to democratic governance not only in Kenya but also all over the world with trends of electoral malpractice experienced largely in Africa. It has been a few decades now since many African countries adopted a multi-party democratic systems of governance, some progress has been made while challenges remain, however there is evidence to show that the majority of African's population prefer the democratic system of governance. This paper reviews the features of what is and what is not democratic governance as well as election process. An attempt is also made to describe the dimensions as well as the challenges of electoral malpractice in Kenya's quest for a democratic governance. Electoral malpractice in Kenya has been manifested by strategic manipulation of electoral rules, electoral institution, electoral administration, and manipulation of voters. It is due to such practices that election offences manifest into all forms of malpractices such as misuse of state resources, bribery, undue influence and interference with the Independence of the electoral body. These offences have remained a deterrent in Kenya's electoral journey of one day achieving a good electoral democratic governance that can be emulated not only across the continent but also the world at large. Although the Kenyan Constitution has granted the Independent Electoral and Boundaries Commission, Director of Public Prosecution and law enforcement agencies extensive powers to oversee, investigate and prosecute all election offences in Kenya, generally the role of the court with regard to free and fair elections is to impartially and expeditiously determine electoral disputes. The paper utilizes Kenya's electoral laws, court decisions as well as legislations criminalizing electoral malpractices so as to arrive at a balanced and objective analysis. Electoral malpractices have not abated since the promulgation of the electoral laws and the current Kenyan Constitution in 2010 as till to date electoral malpractices are still reported. The paper also argues triggers of electoral malpractice, violence, legitimacy crisis, corruption and other vices that cannot be unrelated with electoral fraud. Lastly it concludes by setting out strategies and 1 1 Fourth Year students at Egerton University School of law pursuing Bachelors of Laws. The authors would like to thank the entire team of the Third National Legal Aid Service on Access to Justice for the opportunity to write this paper. recommendations that would tackle challenges encountered in electoral process and improve electoral integrity including inter alia the adoption of an efficient technology in the electoral process that is transparent and abiding by the principles of Article 10 of the Constitution of Kenya.
Deciding Elections in Africa: Comparative Role of the Courts and the Ballot Box in Nigeria and Kenya
Advances in Social Sciences Research Journal
Democratic sustenance is critical to democratic stability and the conduct of free, fair and credible elections is logically instrumental to institutionalizing the democratic culture in Africa. Post election peace is an obvious sign of this libertarian competitive process to power. There are signs of resilient progress along this continuum in Africa and a necessary facilitator of this process is the court system because democratic elections represent a contest that its outcome could be subject to legal challenges. This paper argues that shifting to the courts to decide election outcomes is not to substitute the ballot box with the judiciary as the principal mechanism for conferring victory but to underscore the relevance of the rule of law in the institutional process of postelection peace building. Contemporary electoral experiences in Kenya and Nigeria offer useful insights into the role of the courts in affirming democratic principles and mechanisms for entrenching democratic peace through merit based judicial outcomes rather than the resort to technicalities that seek to uphold 'injustice' rather than the triumph of the ballot choice already established through the sanctity of elections. Electoral laws of evidence should be amended to shift the burden of proof to the respondent so that substantive justice can be achieved rather than seeking refuge in technicalities that should not be the prime issues in dispute.
Public Policy and Administration Research, 2015
Credibility of the electoral process across the world is both a means and a necessity to peaceful and stable democracy as credible elections serve to anchor functional legitimate democracy. It also serves as a vehicle that affords citizens an opportunity put in place a people-responsive government that mirrors the people's will. Elections in most African states, however, have over time tended to validate evidently glaring constitutionally flowed outcomes. This trend is further aggravated by seemingly complicit and dysfunctional constitutional and electoral bodies and institutions. With a focus on the 2013 general elections in Kenya, this paper raises the question of the role of these bodies and institutions tasked with overseeing and ensuring credible electoral outcomes and their ability to live up to their expectations.
It is certain that electoral disputes fall at the door of the judiciary; the courts must not only take judicial notice of this but also adopt general guidelines that embody impartiality, practicality and legitimacy, for dealing with the differing election dispute scenarios. Faith in the entire political system can be eroded if the electorate does not accept the result of an election and if election related disputes are not dealt with effectively and efficiently. It is clear that all election disputes raise questions to the integrity of the electoral process, in one way or another and in this sense, all have a common character. This research is a focus on the burden of proof (who is weighted with this burden), what is the standard of proof and when does the burden of proof shift particularly in election petitions taking an insight as discussed in the presidential election petition 1 .
International journal of scientific and research publications, 2017
Transitional Justice is the full range of Judicial and non-judicial processes and mechanisms that assist a society to address past human rights abuses, victims'concerns and accountability, justice and reconciliation, while strengthening the rule of law. This paper adopts the United Nations' approach to transitional justice that looks at the full range of a society's attempt to address past human rights violations. The UN approach to transitional justice ensures accountability on the part of the perpetrators, the search for the truth, justice and reparation for the victims. In addition, the approach advocates for the reconciliation of the entire society. Within this context, courts have an important role in ensuring transitional justice by upholding the rule of law, addressingvictims' concerns and punishing offenders, while ensuring that the penal approaches aim at restoring the peace that existed before the conflict. This paper explores how the Kenyan courts can play an effective role in the transitional justice process, following the 2007/2008 post-electionviolence that left thousands of Kenyans dead, several displaced and property worth millions of shillings destroyed. The subsequent elections in 2013 left many Kenyans confused and in doubt as to the ability of the supposedly reformed judiciary to effectively handle presidential disputes impartially and independently. The August 2017 Presidential election that was annulled by the Supreme Court has further deepened the political and ethnic divisions in the country.The paper discusses lessons learnt from the 2007, 2013 and 2017 elections and explores mechanisms such as special tribunals, special courts, local courts and traditional methods of justice that the judiciary can utilize in addressing thepost-electionviolence concernsthat remain as painful wounds afflicting many Kenyans.Also discussed is the dichotomy of praise and disappointment with the performance of the Supreme Court in the 2013 and August 2017 Presidential dispute resolutions.The lessons learnt may assist the Judiciary in the preparation for any possible violence in the coming elections in October 26th2017 in Kenya. The paper concludes that the Kenyan Judiciary, in exercising judicial authority on behalf of all Kenyans, has a constitutional duty to uphold peace,unity,human rights, equality, freedom, democracy, social justice and the rule of law.If the Judiciary asserts its impartiality and independence, remains accountable to the people of Kenya, on whose behalf they exercise judicial authority, and not the political class, the injustices caused by the previous election violence should be addressed to the satisfaction of all affected. In addition, the Judiciary has a duty to ensure that Kenya does not witness any form of election violence ever again.