By Shadrack Muyesu
The Nasa fraternity has moved to court to challenge the re- election of President Uhuru Kenyatta in the recently concluded General Election. Their petition is anchored on three limbs: one, that the independent Electoral and Boundaries Commission acted illegally and irregularly in the collation, tallying, verification and transmission of the presidential election result; second, that the election was conducted fraudulently by the Commission and; that the 3rd Respondent, the President-elect, conducted his campaigns in breach of election guidelines.
On the face of it, Nasa restrained itself from pursuing a matter that has characterised their allegations thus far, that the Commission’s servers were hacked and the elections results manipulated in the 3rd Respondent’s favour, with the Commission as an accomplice. They only cite it as a strong possibility with prayers to be granted access into the Commission’s servers to ascertain this possibility. Although this move may be justified by the high standard of proof required to prove such an allegation, it significantly weakens their case considering that previous petitions anchored on the other allegations almost always never succeed, largely due to a lack of clarity in the standard of proof required.
Standard of proof
In Raila Odinga v The Independent Electoral and Boundaries Commission & 3 Others (2013) eKLR, the Supreme Court was of the opinion that a court ought to be left to determine its own standard of proof. In the particular case, it set for itself a standard beyond a balance of probability but lower than beyond reasonable doubt with normal standards where electoral fraud is alleged. In the case of data-specific electoral requirements (such as those specified in Article 38(4) of the Constitution, for an outright win in the Presidential election), it ruled that the party bearing the legal burden of proof must discharge it beyond any reasonable doubt. At best, this position is unclear.
One of the principle guidelines on electoral conduct in Kenya is the Elections Act, 2011 (No. 24 of 2011). On election petitions and illegality the Act under Section 83 states:
“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 that election.”
The general common law position represented in the Halsbury’s Laws of England is that no election is to be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the appropriate elections rules if it appears to the tribunal, having cognizance of the question that the election was conducted substantially in accordance with the law as to the elections, and that the act or omission did not affect the result.
From the outset, there seems to be a clear distinction between illegality and irregularity with the position that an election must mandatorily be nullified the substantial demonstration of the former consequences regardless. Yet the Court in Raila Odinga takes a slightly different view. The Supreme Court reasoned that it is not enough that illegality or manipulation is alleged, but that such manipulation or illegality must be shown to have influenced the final outcome in the petitioner’s favour or at least prevented the 3rd Respondents from reaching the Constitutionally required threshold of a winner having 50% + 1 of all the votes cast and or at least 25% of all the votes cast in at least half of the counties. Specifically the Court ruled:
In summary, the evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such…
In Nana Addo Dankwa Akufo-Addo & 2 Others v John Dramani Mahama & 2 Others (Writ J1/6/2013), where the petitioners alleged that elections had been marked in blatant disregard of Ghana’s election laws, including instances of voting without biometric verification, over-voting, duplicate serial numbers of ballot papers, duplicate polling station codes, the absence of signatures of presiding officers on some result declaration forms and results from polling stations unknown to the 26 002 polling stations of the country which results if rejected would tilt the election in the petitioner’s favour, the Supreme Court, in its majority, held:
Elections cannot be perfect; so when we are faced with the consideration of irregularities that are alleged to have occurred in an election, we should exercise reluctance in striking down every single vote just by reference to a provision of the law. On the contrary, the irregularity must have affected the integrity of the elections.
Adinyira JSC for the majority observed that the mere fact that there had been setbacks in the elections did not, without more, automatically mean that the results had been adversely affected.
In Morgan & Others v Simpson & Others  3 WLR 517, where the English Court of Appeal had a chance to interrogate instances in which an election could be declared null and void on grounds of breach of election statutes, the Court ruled the election invalid in spite of the fact that it had been carried out in substantial compliance of election rules and guidelines. It proceeded to outline two circumstances under which an election could be cancelled. The first is that an election has been so poorly conducted that it cannot be said to have been conducted in substantial compliance with election laws. The second was that although an election is conducted in substantial compliance with election laws, there are mistakes, acts or omissions that adversely affect the results hence require that it be cancelled.
In Morgan, of the 23,691 votes cast in an election, 44 were rejected because officials in 18 polling stations had failed to fix official stamps on the ballot papers. The winner got 11 votes more than loser who contested the results on the grounds that if the rejected votes had been counted, he would have emerged victorious by 7 votes. The trial court dismissed his petition on grounds that a few administrative errors were not enough to impugn the integrity of the election as it was carried out substantially in accordance with the election law
A similar view characterized Nana Addo, Medhurst v Lough Casquet  17 LTR 230 and Opitz v Wrzesnewskyj (2012) SCC 55-2012-10-256, where the Court warned against the temptation to hold an election void because of an inadvertent breach of election regulations by election management officials. To do so, according to the Court, would only disenfranchise the voter of the right to vote for a mistake that was not his. In Opitz, the
Court opined thus:
If a vote cast by an entitled voter were to be rejected in a contested election application because of an irregularity, the voter would be irreparably disenfranchised. This is especially undesirable when the irregularity is outside of the voter’s control, and is caused solely by the error of an election official.
The jurisprudence of the Court in Ibrahim v Shagari & Others (1985) LRC (Const) 1 further elucidates this principle. The court said:
The Court is the sole judge, and if it is satisfied that the election has been conducted substantially in accordance with Part II of the Act, it will not invalidate it. The wording of Section 123 is such that it presumes that there will be some minor breaches of regulations but the election will only be avoided if the non-compliance so resulting and established in court by credible evidence is substantial. Further, the Court will take into account the effect, if any, which such non-compliance with [the] provisions of Part II of the Electoral Act, 1982 has had on the result of the election.
From the foregoing, it is clear that the common law principle espoused in Halsbury often takes precedence. An election must be conducted in substantial compliance with the law. It is clear that irregularity has come to be accepted as common occurrence in almost every election. This, however, creates a moral hazard in that electoral bodies are held at very low standards of accountability.
There is however another standard that, if achieved, leads to the automatic nullification of an election. Illegality is enough to warrant the nullification of an election whether or not such illegality affected the results. This standard was elucidated most clearly in Yushchenko v Central Election Commission and is anchored in the common law principle that fraud vitiates everything. In this case, the Supreme Court relied of proof of widespread electoral fraud to order a run off between Viktor Yanukovych and Viktor Yushchenko. Yet it would seem that a petitioner can only benefit from this standard when the law is clear that instances of fraud are fatal to an election’s credibility.
Nasa will have to prove that the irregularities alleged were enough to tilt the results in their favour or at least prevent the respondents from reaching the Constitution threshold of 50% + 1 and/or at least 25% of the votes in at least half of the counties. Alternatively, they could simply prove that the election was substantially not in conformity with the law or that the Commission acted maliciously to favour one party.
Unfortunately, while the Supreme Court in Raila Odinga (supra) adopted this standard, it treated illegality and irregularity as if they were one with the effect is that illegality, without proof of effect, is not enough to nullify an election in Kenya. It also took judicial notice of equipment failure without requiring bona fide proof from the Commission. This is bad law. If retained, it would a mortal blow to Nasa’s petition as, although not binding to it, to the extent that the factors and circumstances are similar, the Supreme Court will be expected, as a matter of good practice to stick to its original jurisprudence.
The present case is however unique in a number of aspects. First, the ruling of the High Court in Maina Kiai & 2 others v Independent Electoral and Boundaries Commission & 2 others  that presidential election results declared by constituency returning officers shall be final means that, to discharge their legal burden, Nasa will literally have interrogate all the forms 34B in question and cross examine the returning officers. This is not an easy task.
Secondly, it will also be interesting to see how the Court interprets Section 39 of the Elections Act, a cornerstone of the Petitioner’s case. Section 39 demands that numbers must be supported by corresponding forms 34b s. IEBC has confessed to a good number of the forms not being available at final announcement.
Thirdly, in 2013 the Supreme Court demonstrated a reluctance to “meddle with the people’s will” or usurp the power of the other courts to hear petitions. This ruled out a nullification of the results. This time though, if is Nasa’s prayers for the Commission’s servers to be opened for scrutiny are granted and hacking allegations are proved, the Supreme Court must be bold and cancel the entire exercise.
Finally, how the Court deals with the issue of time and its interpretation of the “oxygen rules” will be very important to this petition. In 2013, it favoured a strict approach. The assumption is it can only be stricter. Be that as it may, the most important guideline as to how the Court could rule is the composition and history of the bench.