Election petitions: Why ‘simple irregularities’ are never enough

All indications are that Museveni will return the favour initiated by Kenyatta, by providing mental, material and to a greater extent, military, support should need arise

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Newton Arori

“…an election once held, is not to be treated in a light-hearted manner, and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing serious elements of uncertainty on the verdict already tendered by the electorate. An election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held…” – The Supreme Court of India in “Rahim Khursid v Khurshid Ahmed & Others [1975] AIR 290, 1975 SCR (1) 643”

One of the unsuccessful candidates in the recently-concluded Ugandan presidential election John Patrick Amama Mbabazi is before the country’s Supreme Court to challenge the election of President Yoweri Kaguta Museveni. As we follow the matter, it is only natural for us to engage in discourse regarding the nature of election petitions, which are notoriously common here in Kenya. As any keen observer will attest, only a few of such petitions succeed. The purpose of this piece is to show how courts approach election petition matters with regards to irregularities or anomalies in election procedure.

There is consensus among courts world over that the primary consideration in an election petition is whether the will of the electorate has been affected by irregularities (if any).  Lord Denning in the case of “Morgan and Others v Simpson and another [1974] 3 ALL E.R. 722, 728” stated thus with regard to irregularities: “…If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls – provided it did not affect the result…”

‘Spirit of the electorate’

Similarly, our main electoral legislation, the Election Act, states in Section 83: “No election shall be declared to be void by 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.”

But what exactly is the meaning of the clause “affect the result of the election”?  Courts have held that it refers to the question of which person is elected, as opposed to the number of votes cast for each candidate. Therefore, if a consequence of irregularity is that a candidate would have polled more or less than what was recorded at the count, but the same candidate would still have been elected, the result would not have been affected.

The above position is amply illustrated in “Fitch v Stephenson and Others [2008] EWHC 501(QB)”. In the case, the petitioner proved failure by election officials to count 45.8 per cent of votes cast. Nevertheless, the court declined to nullify the election, stating that the petitioner had failed to prove that the result would have been any different if not for the irregularity.  The judges stated: “…the courts will strive to uphold an election as being substantially in accordance with the law, even where there have been serious breaches of the rules, or of the duties of the election official providing that the result of the election was unaffected by those breaches. The availability of proportionate judicial remedy for rectifying the result and declaring the true result of the election following scrutiny and a recount prevents the necessity to choose between vitiating the entire election and allowing an erroneous election to stand.”

The High Court of Kenya has addressed itself to similar matters a number of times. In the case of “Lenno Mwambura Mbaga and Another v Independent Electoral and Boundaries Commission and Another (2013) eKLR” the petitioner contended that the gubernatorial election in Kilifi county was conducted in an atmosphere of violence and fear, as a result of which some polling stations did not open, while others opened late and closed early. The petitioner also alleged mishandling of ballot papers after voting. All this, the petitioner argued, compromised the integrity of the elections as due procedures for the handling and counting of ballot boxes and ballots such as sealing and the participation of agents could not be complied with in the obtaining circumstances.

The court found that there were indeed acts of violence on the eve of election day and that some polling stations did not open. Despite these findings, the court did not nullify the election. It was held that since there had been a high voter turnout in the county, the petitioner had failed to demonstrate how the violence and procedural anomalies had affected the result.  In dismissing the petition, the court relied on the appeal case of “James Omingo Magara v Manson Onyango Nyamweya & 2 others (2010) eKLR”, where Justice Erastus Githinji, regarding a failure by the presiding officer to sign Form 16A stated: “Reasonable compliance as opposed to strict or absolute compliance with the procedures set out in the legislation is the standard considering procedural matters… Secondly, it is my view that the mere failure by a presiding officer to sign Form 16A is a procedural anomaly which does not invalidate the results announced in a polling station… the complaint by the appellant that the election court relied on generalities regarding Form 16A and 17A without quantifying the gravity of those anomalies is valid.  In my view, the election court should have addressed itself to specific Form 16As and 17As, examined the anomalies and ultimately determined what impact the anomalies had in the overall results of the elections…those anomalies were in counting or rather in the reconciliation or tallying process.  They are post-election anomalies which, in my view, did not affect the vote.”

In the case of “Bashir Haji Abdullahi v Adan Mohamed Nooru & 3 others (2013) eKLR”, the election petition was based on multiple grounds, one of the main ones being that the elections in Mandera North Constituency were conducted beyond the lawfully stipulated time periods.  In fact, in some polling centres, the exercise had extended to the next day – an allegation that the respondents did not dispute. Under the Elections (General) Regulations, 2012 a Presiding Officer has power in consultation with the Returning Officer, to extend the hours of polling at the polling stations where polling has been interrupted for a valid cause or where polling in that polling station started late in order to regain the time lost.  Such extension and the reasons for the same should be detailed in a report justifying the extension. The petitioner’s contention was that the extensions of time to vote were unexplained, and therefore unlawful.

Electoral principles

As the court found, the failure to indicate the reasons for extension of time was clearly an irregularity by the Presiding Officer.  Regardless, the petition was dismissed. Justice David Onyancha in his judgement stated:
“The majority of the irregularities and malpractices alleged and probably committed were minor, human and excusable. They did not go to the root of the electoral principles so as to affect adversely the result of the election contested.

Such irregularities include failure by the presiding officer to indicate the reasons and nature of extension of voting hours; the reasons why agents in given polling stations did not sign Forms 35; arithmetical mistakes of figures of votes garnered by candidates as entered in Forms 35; misplacement in ballot boxes of forms and other electoral materials. In some of these irregularities it was the failure to explain an act or conduct rather than the doing of it that led to the irregularity.”

To succeed in an election petition therefore, the petitioner needs to prove, in addition to the irregularities, that such irregularities had a substantial impact on the result of the election, so that the result does not reflect the will of the electorate. And so it stands that unless Mbabazi is able to prove this position in his petition, Museveni’s election is likely to be upheld.

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