By Felix O. Okanga
Central to the Supreme Court’s reprimand of counsel on 5th September 2022 as it delivered its judgment in the consolidated election petitions resulting from what has been termed as a hotly contested election was the law of evidence. Law of Evidence through the Evidence Act, CAP 80 Laws of Kenya, places the burden of proving facts upon the person alleging them. This is done by way of adducing evidence in support of the facts.
At the heart of evidence law is the competence of the person producing the evidence. Competence refers to a witness’s ability, capacity, or qualification to give evidence. It points out who may give evidence and the circumstances under which a particular witness can testify.
When the supreme court, during the judgment on 5th September 2022, tore through the sworn affidavits of Celestine Anyango Opiyo, John Mark Githongo, and Arnold Ochieng, the court was, in fact, addressing the competence of the deponents of those affidavits. In the court’s view, the three were not competent as they were not privy to the facts contained in the affidavit. In other words, the content of the affidavits was hearsay which, as a general rule of evidence, is inadmissible.
One is then tempted to ask how the petitioners found themselves with inadmissible evidence and knee-deep on the wrong side of the rules of evidence. One probable answer is the strict timelines provided by the Constitution in filing of election petitions and the evidence-gathering process. In the case of presidential election petitions, a petitioner has exactly seven days from the day results are declared to collect evidence of electoral malpractice from the gazzetted 46,229 polling stations and consequently file the Petition.
Other than the numerous polling stations where one has to check for evidence of election malpractice, the next hurdle in the evidence-gathering process is the custodian of that evidence which might be the silver bullet in the petitioner’s case. Essentially a petitioner seeking to challenge the declared result will also rely on the goodwill and cooperation of the Independent Electoral and Boundaries Commission (IEBC) to avail the documents and digital logs that they might need to mount a good case.
Also, the goodwill extends to any such subcontracted organizations/ companies by IEBC to supply different technologies for the elections. Smartmatic’s response to the order to access its server demonstrates that goodwill and cooperation are almost always not guaranteed.
How, then, does a party proceed to file its Petition without having sound, credible and watertight evidence? The practice has been to file the Petition accompanied by an interlocutory application seeking Orders to compel IEBC to either avail certain documents, allow access to its servers or even provide the electronic logs to its systems.
Bearing that IEBC is among the parties sued in the Petition, how practical is it that your adversary will avail you of the evidence that might just be the last nail in its coffin? Even with a court order, petitioners are not guaranteed total compliance; a case in point is the IEBC’s failure to open its servers during the 2013 presidential election petition when there was an express court order for the IEBC to do so.
The other challenge presented by the law of evidence is ensuring its relevance. Relevance in the law of evidence is said to be when evidence is logically probative or disprobative of some matter which requires proof. “Thus relevant evidence is evidence which makes the matter that requires proof more or less probable.” Relevance of evidence is not in the pomp and optics with which it is presented but is in the probative value it potent.
As is the case that elections are emotive and the politicians’ urge to play the emotions of the electorates, we find ourselves with voluminous documents fashioned as evidence yet having no relevance and certainly no probative value. Of what good are 46,229 forms 34A produced in evidence if the same does not prove any facts in the Petition?
Hence a petitioner who finds themselves without competent witnesses coupled with evidence with no probative value is doomed to fail in their cases. Similarly, a party with relevant evidence without competent witnesses to produce the proof almost certainly has their goose cooked.
To overcome these hurdles, an election candidate might want to consider, as part of their strategy, to have evidence gathering as a continuous process running from election preparations to the election day and eventually the result declaration day. Herein, the candidate will have credible and competent witnesses at every stage of the elections in the form of observers and agents. For instance, having reliable agents at the polling stations will give the candidate who alleges that there was result tampering firsthand relevant evidence in the form of Form 34A.
In line with the Supreme Court’s pronouncement that an election is a process and each stage of the process matters, just as the vote counting process itself, election candidates should shift their focus from the vote counting process to the entire election process. This will increase the chances of success of the election petitions by having credible and relevant evidence with competent witnesses. (
– The author is an Advocate of the High Court of Kenya
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