The Raila petitions: comparing Mutunga and Maraga’s courts

The Court may have made some mistakes but, generally, 2017 was an improvement of 2013. It tried to be fair in its dealings

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By Shadrack Muyesu

The Supreme Court’s decision in Raila Odinga vs. The Independent Electoral and Boundaries Commission & 3 Others (2013) eKLR has been widely criticised as being in error and lacking in jurisprudential value. As such, 2017 was always going to be an opportunity for it to clarify or restate its position.

2013

In 2013, the Court restrained itself from interfering with the will of the electorate, to find that Uhuru Muigai Kenyatta and William Samoei Ruto were validly elected and declared president and deputy president respectively.

The Court also found the election to have been conducted in a free, fair, transparent and credible manner and in substantial compliance with the Constitution and the relevant laws. In doing so, the Court treated illegality and irregularity like they were the same thing. As in instances of irregularity, it took the view that substantial illegality does not vitiate an election unless it can be demonstrated that the illegality would have prevented the President-elect from reaching the basic vote-threshold justifying his being declared as such. To many, this was a misstatement of the legal burden.

On voter registration, the Court ruled that the process was also conducted in a free, fair, transparent, credible and accurate manner to produce a legally acceptable voters register that enabled an election conducted in substantial conformity with the law. It also viewed the elections as a manual process whilst taking judicial notice of electronic systems’ susceptibility to failure. In short, the Court did not require proof of failure. Finally, the Court was of the view that rejected votes ought not to be included in determining the total votes cast for each candidate.

In arriving at its ruling, the Court adopted a curious standard of proof of between a balance of probability and the criminal standard of beyond reasonable doubt. However, it emphasised that in data specific instances, a petitioner would have to prove his case beyond a reasonable doubt. Opinion remains divided as to what exactly the Court meant by data specific.

The Court has also come in for severe criticism with how it handled the interlocutory applications. Curiously, all the six applications were decided in favour of the respondents.

The Law Society of Kenya, Nazlin Umar and Katiba Institute’s applications to be enjoined in the suit with protest from the respondents, were denied while the Hon. Attorney General was accepted as Amicus, and Denis Njue Itumbi and Moses Kuria were accepted as alternative petitioners. The petitioner’s 900-page affidavit was also thrown out for being filed out of time on the respondents’ request while his prayer requesting access to the First Respondents’ computer logs too was denied. Also, while Gladwell Wathoni Otieno and Zahid Rajan for Africog were admitted, the Court failed to cite their submissions in its final ruling. In fact, the petitioners lost, procedurally and substantively in all the matters they brought before the Court for adjudication.

Perhaps taking advantage of the novelty of the case (being a first presidential election petition under the Constitution of Kenya 2010 to be adjudicated under strict constitutional timelines) and a large section of the bench’s relative inexperience in issues of procedure, Jubilee lawyers took charge of the proceedings to bully orders out of the Court. The Court also failed to restrict Amicus who took his opportunity to buttress the respondents’ case and whose submissions on burden of proof and the nature of the elections as a manual process were adopted by the Court in its final ruling. The effect of the Court’s pronouncements on the preliminary issues created a lack of equality in submission. More time was dedicated to the defense on account of the submissions of the President elect, the Deputy President elect, the Commission, the Commission’s Chair, Amicus Curiae and the 2nd Petitioners.

The Court also ordered a scrutiny of the results. However, it neither allowed a discussion on the findings nor explored it in its findings. To this day, the outcome of the scrutiny remains unclear. It is these factors among others that have led some commentators to label 2013 a miscarriage of justice.

2017

This year’s petition demonstrates…

…to read more please purchase the Nairobi Law Monthly Magazine July 2017 Issue at only Kshs 350

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