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Resolution of Electoral Disputes in Kenya: An Audit of Past Court Decisions

Authors:
ii
Balancing the Scales of Electoral Justice: 2013 Kenyan Election Disputes Resolution and
Emerging Jurisprudence
Copyright © International Development Law Organization (IDLO) and Judicial Training
Institute (JTI), 2016
Edited by Dr. Collins Odote and Dr. Linda Musumba
Disclaimer
e views expressed in this book are the views of the authors and do not necessarily reect
the views or policies of IDLO or its Member Parties, or the JTI.
All rights reserved. is material is copyrighted but may be reproduced by any method
without fee for any educational purposes, provided that the source is acknowledged. For
copying in other circumstances or for reproduction in other publications, prior written
permission must be granted from the copyright owner and a fee may be charged. Requests
for commercial reproduction should be directed to the International Development Law
Organization.
is book is funded by DANIDA. e ndings and conclusions contained within are
those of the authors and do not necessarily reect the positions or policies of DANIDA.
Published by
International Development Law Organization (IDLO)
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and
Judiciary Training Institute (JTI)
P.O. Box 28872-00200 | Nairobi | Kenya
Web: www.judiciary.go.ke | Email: jti@judiciary.go.ke / judiciaryinstitute@gmail.com
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ISBN 9788896155196
iii
Contents
Foreword iv
Biographical Notes vii
List of Acronyms xiv
Introduction - Dr. Collins Odote and Dr Linda Musumba 1
I. Judiciary’s Quest for A Speedy and Just Electoral Dispute
Resolution Mechanism: Lessons from Kenyas 2013 Elections
- Justice David Majanja 19
II. A Critique of the Raila Odinga Vs IEBC Decision in Light of
the Legal Standards for Genuine Presidential Elections in Kenya
- Francis Ang’ila Aywa 46
III. A New Dawn Postponed: e Constitutional reshold for Valid
Elections in Kenya and Section 83 of the Elections Act
- Heidi Evelyn and Waikwa Wanyoike 78
IV. Standards of Review and Resolution of Electoral Disputes in Kenya:
A Review of the Jurisdiction of the High Court; e Court of
Appeal and e Supreme Court - Muthomi iankolu 114
V. Comparative Perspectives on Kenya’s Post-2013 Election Dispute
Resolution Process and Emerging Jurisprudence
- Prof. H. Kwasi Prempeh 149
VI. Gender Issues in Electoral Politics in Kenya; e Unrealized
Constitutional Promise
- Prof. Wanjiku Mukabi Kabira and Prof. Patricia Kameri-Mbote 177
VII. Evidentiary Matters in Election Petitions in Kenya: Progress
or Backsliding? - Elisha Z. Ongoya 215
VIII. Scrutiny in Electoral Disputes: A Kenyan Judicial Perspective
- Justice David Maraga 243
IX. Friend of the Court or Partisan Irritant? e Role of Amicus
Curiae in Kenya’s Election Disputes Resolution- Dr. Collins Odote 276
X. Best Foot Forward: A Critical Assessment of the Lawyering Demonstrated
During the 2013 Presidential Election Petition in Kenya
- Dr. Linda Musumba 305
iv
Foreword
While elections are the hallmark of every democratic society, Kenya’s history
with elections has been anything but satisfactory. e use of the words “free
and “fair” have been variously contested. As opposed to being a tool for
peacefully selecting the country’s leadership, it has brought another layer of
disputation in Kenya. e lowest moment of these sad developments were the
2007 elections.
e adoption of the Constitution of Kenya, 2010 aimed to change our
approach to governance and views about democracy. Elections under the
Constitution are expected to be free, peaceful and credible. Delivering on
this Constitutional requirement is the responsibility of several institutions.
All Kenyans too have a role to play. In the scheme of implementation, the
Judiciary plays a part both at the tail end of the process as well as through
occasional interventions throughout the electoral cycle. It, however, has the
principal responsibility of addressing disputes that arise from elections.
As we approached the 2013 general elections, the Judiciary was alive to the
condence crisis that the institution faced in the eyes of the Kenyan people
as it pertained to electoral disputes. e 2010 Constitution and the Judiciary
Transformation Framework provided us with a framework for ushering
in necessary electoral reforms, reclaiming public condence. As part of
that process, I established the Judiciary Working Committee on Election
Preparations to spearhead the arrangements necessary to ensure that the
Judiciary was better prepared for the expected disputes following the 2013
elections. In the end, the Judiciary listened to and decided several cases
before the elections and 188 election petitions. In addition, several appeals
were heard by the Court of Appeal and determined. e Supreme Court
also disposed of the petitions relating to the Presidential election and several
appeals from the Court of Appeal.
is Publication is useful as it delves into the performance of the Judiciary
in dealing with the election petitions from the 2013 elections. It is thorough
v
Balancing the Scales of Electoral Justice
in its analysis and focuses on key themes critical to assessing election dispute
resolution mechanisms in Kenya. By combining papers from members of
the Judiciary, academicians and practitioners, it enables rigorous analysis
of the emerging jurisprudence. e myriad of perspectives allow for a full
appreciation of the manner in which the Judiciary dealt with the dierent
issues before them, summarizes key lessons from the decisions, identies
areas of concern, and illustrates future improvements required. As a Judiciary
this will also help us continue reecting on our performance and promote a
coherent and indigenous jurisprudence in the electoral eld.
I thank the learned authors for their contributions. rough them, the story
of the Kenyan Judiciary is being told in an objective, scholarly, and in-depth
manner without sweeping any issue under the carpet. is is one model of the
collaborations between the Bench and academia that forms part of my vision
for a new Judiciary that is condent with its decisions, but open to learning.
I challenge more authors to continue writing on electoral jurisprudence and
many other areas of legal determination by the Judiciary. Such critique of our
judgments and conduct is good not just for the Judiciary, but also for the
development of the law in Kenya.
is publication is the result of dedication and collaborative teamwork
between the Judiciary Training Institute and the International Development
Law Organization, thanks to the support of DANIDA. I also thank the editors,
Dr. Collins Odote and Dr. Linda Musumba, for ensuring high quality of
the publication. I commend this book to everybody who has a role to play
regarding elections and electoral dispute resolution, which includes the
Kenyan electorate.
Dr. Willy Mutunga
D.Jur, SC, E.G. H
Chief Justice and President of the Supreme Court of Kenya
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Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
Judiciary Training Instute
e Judiciary Training Institute (JTI) is the organ of the Kenyan Judiciary
which is responsible for meeting the training, research and capacity
development needs of Judiciary sta. JTI performs this mandate in part
through various training programs and seminars, public lectures, research,
and other forms of discourses targeting all cadres of Judiciary sta, and,
where appropriate, members of the academy, other organs of state and the
public at large. As the Judiciary’s institute of higher learning, the JTI is leading
the Judiciary, in line with Judiciary Transformation Framework, in facilitating
the growth of jurisprudence and judicial practice as the lifeblood of the
institution. e JTI is the judicial think tank: an institute of global excellence
and the nerve centre of rich intellectual exchange. It interfaces between the
Judiciary and contemporary developments in society, on the one hand, and
learning interaction between the Judiciary and other agencies, on the other.
e JTI provides the intellectual anchor in making Kenya’s courts the hearth
and home of a robust and functional jurisprudence that meets the aspirations
of Kenyans.
Internaonal Development Law Organizaon
e International Development Law Organization (IDLO) is the only
intergovernmental organization exclusively devoted to promoting the rule of
law. IDLO works to enable governments and empower people to reform laws
and strengthen institutions to promote peace, justice, sustainable development
and economic opportunity. Its programs, research and policy advocacy cover
the spectrum of rule of law from peace and institution building to social
development and economic recovery in countries emerging from conict and
striving towards democracy. IDLO has its headquarters in Rome, a Branch
Oce in e Hague, liaison oces for the United Nations in New York and
Geneva, and country oces in Afghanistan, Honduras, Indonesia, Kenya,
Kyrgyzstan, Liberia, Mali, Mongolia, Myanmar, Somalia, South Sudan and
Tajikistan.
vii
Biographical Notes
DR. COLLINS ODOTE, EDITOR
Dr. Odote holds PhD in Law from the University of Nairobi, where he currently
teaches at the institution’s Center for Advanced Studies in Environmental Law
and Policy (CASELAP), University of Nairobi and at the School of Law. He has
research interests in governance, elections, property theory, natural resource
management and extractives. He also chairs the Board of a Nairobi based
non-governmental organization, e Institute for Law and Environmental
Governance. Dr. Odote has consulted for key stakeholders in the electoral
process, including civil society, government, IEBC, Registrar of Political
Parties and the Judiciary, e Donor Group on Elections, and e UN. He
has also worked with Civil Society, serving as a Programme Manager for a
German political Foundation for over eight years with a focus on governance,
regional integration, constitutional reform and Political Party Strengthening.
In the run up to the 2013 elections he was a long-term advisor for the National
Democratic Institute, where he focused on political party cooperation and the
electoral process. He has recently engaged with the Judiciary Committee on
Elections as a legal advisor.
DR. LINDA MUSUMBA, EDITOR
Dr. Musumba was the founding Dean of Kenyatta University School of Law
(KUSOL) following attainment of her Doctorate studies in Law (PhD) at
the University of Birmingham, UK, in the area of Constitutional Law. She
attained her qualications for the Degree of Master of Laws (LLM) from the
University of Warwick, UK, having obtained her undergraduate Law Degree
(LL.B) from the University of Nairobi, School of Law. Dr. Musumba continues
to be a Senior Lecturer in the Department of Public Law at KUSOL with her
teaching areas being Constitutional Law and East African Regional Law. She
serves on the boards of two legal based institutions namely Katiba Institute
and Kituo Cha Sheria that focus on legal research and advocacy as well as
viii
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
legal aid respectively. Dr. Musumba also serves on the board of Transparency
International, Kenya Chapter whose agenda is mainly research, education
and advocacy against corruption. In the attainment of all her qualications
and recognitions, Dr. Musumba credits the mentorship she received from
eminent and admirable scholars and practitioners she encountered from her
undergraduate days.
With respect to her participation in this Book Project, Dr. Musumba had
the following to say: “When I was rst contacted to participate in this
Project, I thought, what a timely initiative this is for a key institution such
as the Judiciary to undertake an enquiry into such an important issue that
will no doubt inform relevant stakeholders in a subsequent process. When
I found out who the other authors were and my co-editor, I was even more
enthused about participating because this Book puts together the thoughts of
distinguished minds in the legal eld with much knowledge and experience.
In my view, preparations for the 2017 General Elections will be on a surer
footing because of the array of information in this Book.
HON. JUSTICE DAVID KENANI MARAGA
Justice David Kenani Maraga is a holder of LLB (Hons) and an LLM from the
University of Nairobi, where he is an occasional guest lecturer. He is currently
the Presiding Judge of the Court of Appeal at Kisumu. Justice Maraga is also
the Chairman of the Judiciary Committee on Elections. is is a standing
Committee charged with the task of overseeing the hearing by the Judiciary
of election petitions within the time frame set in the Constitution. e
Committee, with others stakeholders in the electoral process, is now engaged
in electoral law reforms to facilitate a seamless disposal of election petitions
which may arise from the 2017 general elections. Justice Maraga is also a
facilitator of the Law Society Continuous Legal Education (CLE) Seminars.
Before being appointed a Judge of the High Court of Kenya in October 2003
and elevated to the Court of Appeal in December 2011, he had been in active
private practice for 25 years covering criminal and civil litigations as well as
conveyance. He is now the Presiding Judge of the Court of Appeal at Kisumu
Station, which covers the whole of the former Nyanza and Western Provinces
as well as North Ri. Previously he has served as a member of the Public Aairs
and Religious Liberty Department of the Seventh-day Adventist Church (East
African Union), a member of the Constitutional Review Task Force of the
ix
Balancing the Scales of Electoral Justice
Seventh-day Adventist Church East Africa Union, Chairman and Secretary of
Ri Valley Law Society, and as a member of the Board of Governors of Njoro
Girls High School and Lanet Secondary School.
HON. JUSTICE DAVID AMILCAR SHIKOMERA MAJANJA
e Honourable Mr. Justice David Amilcar Shikomera Majanja (b. 1973) was
appointed judge of the High Court of Kenya on 23rd August 2011. He took his
oath of oce on 2nd September 2011. He read law at the University of Nairobi
where he graduated with a Bachelor of Laws (LLB) degree in 1996. He also
holds a Master of Laws (LLM) degree in International Trade and Investment
Law in Africa from the University of Pretoria. He was called to the bar in
in 1998 and prior to his appointment as a judge, he was in private practice.
He was also Assisting Counsel for the Commission of Inquiry Investigating
the 2007 Post Election Violence (“the Waki Commission”). Justice Majanja is
currently the Resident Judge, Homa Bay, a member of the Rules Committee
and the Vice Chairman of the Judicial Committee on Elections.
PROF. H. KWASI PREMPEH
H. Kwasi Prempeh is a constitutional and comparative law scholar and legal
policy and governance consultant based in Accra, Ghana, where he is also
founding executive director of Justice Watch, a think-tank dedicated to
promoting just laws and policies and just enforcement and administration of
law. From 2003 to 2015, he served on the faculty of the Seton Hall University
School of Law (New Jersey, USA), receiving tenure as a full professor in 2008.
Professor Prempeh was also a visiting professor at the Accra-based GIMPA
Law School in 2010-11 and has co-taught the “Constitution Building in
Africa” course at the Central European University, Budapest, Hungary, since
2014. Between 2013 and 2014, he served as constitutional adviser to the UN
Special Envoy to Yemen, assisting the Yemeni National Dialogue Conference
and the Constitution Draing Commission to design and dra a new federal
constitution. Prior to academia, he served as director of legal policy and
governance at the Ghana Center for Democratic Development and, before
that, practiced law in Washington, D.C., as an associate with O’Melveny &
Myers LLP and Cleary, Gottlieb, Steen and Hamilton, both leading U.S.-based
international law rms.
Professor Premp eh has consulted on a wide range of rule of law and governance
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Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
issues for various national bodies, international civil society organizations,
and multilateral development agencies. He is also the author of numerous
articles, book chapters, and monographs on diverse aspects of constitutional
development and democratic governance in Ghana and Africa generally.
Professor Prempeh obtained his Juris Doctorate degree from Yale University
Law School, where he served as a teaching fellow and on the editorial board of
Yale Law Journal. He also holds a Master of Business Administration degree
and a Bachelor of Science (Management) degree from Baylor University
(Texas, USA) and the University of Ghana respectively.
PATRICIA G. KAMERI-MBOTE
Patricia is a Professor of Law and Dean at the School of Law, University of
Nairobi. She holds a Juridical Sciences Doctorate from Stanford University
having previously studied law at the University of Nairobi; Warwick; and
the University of Zimbabwe. She a Senior Counsel and has been engaged in
research and teaching for 27 years at various Universities around the world –
Nairobi, Kansas, Stellenbosch, Zimbabwe.
Patricia has published widely and her publications include: ‘e Land Question
and Voting Patterns in Kenya, in Kimani Njogu & P. Wafula Wekesa, Kenya’s
2013 General Election: Stakes, Practices and Outcomes, Twaweza Publications
(2015) pp. 34-47 ‘Trouble in Eden: How and Why Unresolved Land Issues
Landed “Peaceful Kenya” in Trouble in 2008’, Forum for Development Studies,
Oslo, Norway, Volume 1, 2008 (January, 2009) (With Kithure Kindiki) pp.
167-193; and ‘Separating the Baby from the Bath Water: Women’s Rights and
the Politics of Constitution-Making in Kenya, East African Journal of Peace &
Human Rights, Journal of the Human Rights and Peace Centre (HURIPEC),
Faculty of Law, Makerere University, Volume 14 Issue 1(2008) (With Nkatha
Kabira) pp. 1-43.
FRANCIS ANG’ILA AYWA
Francis Aywa is a lawyer and governance consultant. He has an LL.B. Degree
from the University of Nairobi and an MBA from Strathmore University. He
has over 19 years’ experience as a chief executive, manager, mentor, trainer
and leader. His electoral experience began at the Institute for Education in
Democracy (IED), where he worked as Programme Ocer in the Electoral
Process Programme. He served as a Commissioner on the Independent
xi
Balancing the Scales of Electoral Justice
Review Commission that investigated Kenya’s 2007 general election and has
written on various aspects of elections in Kenya.
WAIKWA WANYOIKE
Waikwa Wanyoike is the Executive Director of Katiba Institute, an organization
based in Nairobi Kenya, which works to promote constitutionalism and the
rule of law in Kenya. He practices constitutional law as a public interest
litigator and appears regularly at the High Court, Court of Appeal and the
Supreme Court of Kenya on groundbreaking constitutional matters. Waikwa
has advised government and non-governmental agencies on constitutional
implementation and policy reforms. Previously, Waikwa practiced law in
Toronto, Canada with an emphasis on criminal, immigration and refugee
law, human rights and constitutional law. Waikwa holds a J.D. from Queen’s
University in Canada. He previously studied at Kenyatta University and York
University (Canada). He is an advocate of the High Court of Kenya and
admitted and licensed as Barrister and Solicitor by the Law Society of Upper
Canada.
ELISHA Z. ONGOYA
Elisha Z. Ongoya is the Dean of the Kabarak University School of Law. His
specialty in teaching is in the broad subject areas of public law, including
Election Law. He holds a master’s degree with a specialization in Law,
Governance and Democracy from the University of Nairobi. He is also an
advocate of the High Court of Kenya practicing as such under the rm of
Ongoya & Wambola Advocates. He has litigated electoral disputes before the
Supreme Court, the Court of Appeal, the High Court as well as the Independent
Electoral and Boundaries Commission nomination disputes resolution
committee. He has written on the subject of electoral law and has consulted
for the judiciary and various international and local non-governmental
organizations on the subject of election law and electoral processes. He has
also given numerous mass media interviews and commentaries on electoral
processes in Kenya.
WANJIKU MUKABI KABIRA
Wanjiku Mukabi Kabira is an Associate Professor of Literature and Director,
African Women Studies Centre (AWSC), University of Nairobi, Kenya.
xii
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
She holds a PhD from University of Nairobi, and an MA (Literature) from
Madison, University of Wisconsin, USA. Professor Kabira was a commissioner
in the Constitution of Kenya Review Commission and Vice-Chair. She
has led many organisations including: Kenya Oral Literature Association
(KOLA), African Women in Research and Development (AAWARD),
Women Political Alliance-Kenya (WPA-K) and Collaborative Centre for
Gender and Development (CCGD). Professor Kabira has published widely in
the elds of literature and women/gender studies. Her publications include:
“Time for Harvest: Women and Constitution Making in Kenya”, “Women’s
Experiences as Sources of Public and Legitimate Knowledge: Constitution
Making in Kenya, “e Historical Journey of Women’s Leadership in Kenya,
“Celebrating Women’s Resistance, “e Road to Empowerment, “A Letter to
Mariama Ba, Reclaiming my Dreams: Oral Narratives of Wanjira wa Rukenya”,
“e Oral Artist”, “Contesting Social Death. She has been a leader in women’s
movement for many years where she has consistently and passionately
advocated for gender equality and equity in Kenya and the region. Professor
Kabira has mentored many women who have gone on to play critical roles
in women’s empowerment and advancement. Her involvement with women
issues inspired her to spearhead the establishment of the African Women
Studies Centre in 2009.
MUTHOMI THIANKOLU
Muthomi iankolu is a Partner at Muthomi & Karanja Advocates; a Lecturer
at the University of Nairobi School of Law; and a Member of the Retirement
Benets Tribunal. He has previously served as a Lecturer at the Kenyatta
University School of Law; a Partner at Mohammed Muigai Advocates; and a
Council Member at the Meru University College of Science and Technology.
Muthomis research and practice interests are in civil and commercial
litigation; constitutional and administrative law; public procurement
regulation; international economic law; and electoral disputes.
Muthomi is an experienced litigator and legal consultant. He has appeared
before many Kenyan courts and tribunals, including the Supreme Court. He
has also appeared at the East African Court of Justice. Muthomi was involved
in the precedent-setting case of Gatirau Peter Munya v Dickson Mwenda
Kithinji & 2 Others (Civil Application No. 5 of 2014 and Petition No. 2b of
2014), in which the Supreme Court of the Republic of Kenya held, for the rst
time, that it had jurisdiction to hear appeals from decisions of the Court of
xiii
Balancing the Scales of Electoral Justice
Appeal in electoral disputes. Muthomi has also handled many other landmark
cases in the areas of constitutional law; administrative law; judicial review
and public procurement regulation. Muthomi holds an LLM in International
Economic Law (with distinction) from the University of Warwick and an LLB
(Hons.) from the University of Nairobi.
HEIDI EVELYN
Heidi Evelyn is a Legal Consultant in Nairobi, Kenya currently specializing
in legal writing and research. She has completed projects for Kenya’s
Commission for the Implementation of the Constitution and formerly
worked for one of the country’s leading law rms. Heidi has a keen interest in
Kenya’s new constitution, especially matters relating to the administration of
justice and equality rights. Previously, she was an Advocate for workers’ rights
and a long time Tribunal Counsel for the Workplace Safety and Insurance
Appeals Tribunal in Toronto, Canada, where she practiced administrative,
labour and workplace safety and insurance law. Heidi holds a Bachelor of
Commerce from the University of British Columbia and a Juris Doctor from
Queen’s University. She is a member of the Law Society of Upper Canada and
a candidate for the Law Society of Kenya’s Roll of Advocates.
xiv
List of Acronyms
ACDEG African Charter on Democracy, Elections and Governance
ACHPR African Charter on Human and Peoples’ Rights
AfriCOG Africa Centre for Open Governance
All E.R All England Reports
AU African Union
BVR Biometric Voter Registration
CEDAW Convention on the Elimination of all Forms of Discrimination
Against Women
CIPEV Commission of Inquiry into Post-Election Violence
CJPC Catholic Justice and Peace
CKRC Constitution of Kenya Review Commission
CNN Cable News Network
CMS Case Management System
COG Commonwealth Observer Group
COK Constitution of Kenya, 2010
CORD Coalition for Reforms and Democracy
DPAC Directorate of Public Aairs and Communication
ECK Electoral Commission of Kenya
EDR Electoral Dispute Resolution
ELOG Elections Observation Group
EMBs Election Management Bodies
eKLR eKenya Law Reports
EP Election Petition
EU European Union
EOM Election Observation Mission
xv
Balancing the Scales of Electoral Justice
EVID Electronic Voter Identication
FAQs Frequently Asked Questions
FEMNET African Womens Development and Communication Network
FIDA-Kenya Federation of Women Lawyers in Kenya
FPTP First-Past-the-Post
GIZ German Development Cooperation
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICT Information Communication Technology
IDEA Institute for Democracy and Electoral Assistance
IDLO International Development Law Organization
IEBC Independent Electoral and Boundaries Commission
IED Institute for Education in Democracy
IIBRC Independent Electoral and Boundaries Review Commission
IIEC Interim Independent Electoral Commission
IREC Independent Review Commission on the General Elections
IRI International Republican Institute
IPPG Inter Parties Parliamentary Group
IWPR Institute for War and Peace Reporting
JWCEP Judicial Working Committee on Election Preparations
JCE Judiciary Committee on Elections
JSC Judicial Service Commission
JTF Judiciary’s Transformation Framework
JTI Judiciary Training Institute
KANU Kenya African National Union
KEWOPA Kenya Women Parliamentarians Association
KLR Kenya Law Reports
KPU Kenya People’s Union
KRA Key Result Area
LSK Law Society of Kenya
xvi
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
MMPR Mixed Member Proportional Representation
NARC National Rainbow Coalition
NCAJ National Council on the Administration of Justice
NCC National Constitutional Conference (NCC)
NCCK National Council of Churches of Kenya
NCLR National Council for Law Reporting
NDI National Democratic Institute
NEEDS Network for Enhanced Electoral and Democratic Support
NGEC National Gender and Equality Commission
NGOs Non-Governmental Organizations
ODPP Oce of the Director of Public Prosecutions
ODM Orange Democratic Movement
O’H&H O’Malley & Hard castle’s Election Cases
PPDT Political Parties Disputes Tribunal
PR Proportional Representation System
PSC Parliamentary Select Committee
SIDA Swedish International Development Agency
TLR Times Law Reports
TNA e National Alliance
TOTs Trainers of Trainers
TRS Two-round system
UDF United Democratic Forum
UDHR Universal Declaration of Human Rights
UK United Kingdom
UNCT UN Country Team
UNDP United Nations Development Programme
UNGA United Nations General Assembly
URP United Republican Party
US United States of America
WLR Weekly Law Reports
WOWESOK Widows and Orphans Welfare Society of Kenya
1
Introduction
This Book documents the emerging electoral jurisprudence and electoral
dispute resolution mechanisms under the new regime prescribed in the
Constitution of Kenya, 2010 (CoK). e Chapters herein are informed by
various aspects that came to play during the settlement of electoral disputes
that arose following the 2013 General Elections. e ultimate goal is to
establish the progress made in creating progressive jurisprudence and the
building of responsive dispute resolution mechanisms that inspire condence
among citizens. Such insight will be used to draw lessons for the various
stakeholders in elections including; the Judiciary, the Independent Electoral
and Boundaries Commission, Political Parties, the aspirants for various
electoral positions and the electorate.
Elections provide a platform for citizens to participate in government
indirectly through their elected representatives. e Universal Declaration on
Human Rights, which captures fundamental values shared by all members
of the international community,1 provides that elections should be periodic,
genuine, by universal and equal surage and be held through secret ballot
or by equivalent free voting procedures.2 Elections conducted in adherence
to the above prerequisites provide a strong foundation for democracy to
thrive.3 ey grant legitimacy to those that rise to power, as these represent a
government by the people. It is then incumbent on the representatives of the
people to ensure that the government that is then formed is a government
for the people. In Ghana, Mauritius and South Africa, successful elections
have enhanced prospects for greater economic and political development.4
1 E Z Ongoya and W E Oeno, A Handbook on Keny a’s Electoral Laws and Syst em (2010) 1.
2 Arcle 21(1) and 21 (3) of the Universal Declaraon of Human Rights.
3 Naonal Democrac Instute for Internaonal Aairs (NDI), Africa Center for Strategic Studies (ACSS),
Internaonal Foundaon for Electoral Systems (IFES), Netherlands Instute for Mulparty Democracy (NIMD),
Open Society Iniave for West Africa (OSIWA), and United Naons Development Programme (UNDP), Colloquium
on African Elections: Best Practices and Cross-Sectoral Collaboration, (2009) 3.
4 Naonal Democrac Instute for Internaonal Aairs (NDI), Africa Center for Strategic Studies (ACSS),
Internaonal Foundaon for Electoral Systems (IFES), Netherlands Instute for Mulparty Democracy (NIMD),
Open Society Iniave for West Africa (OSIWA), and United Naons Development Programme (UNDP), Colloquium
on African Elections: Best Practices and Cross-Sectoral Collaboration, (2009) 1.
2
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
e inverse is also true. In countries where elections have been marred with
irregularities resulting in disputes, the aermath has been detrimental to the
welfare of the people. Many lives have been lost, many have been displaced
and property destroyed.5 e importance of elections in Kenya is captured
by the Constitution of Kenya, 2010 which makes it the basis of exercising and
eventual delegation of sovereignty to, amongst others, those directly elected
by the People.
ere have been periodic general elections since Kenya gained independence;
in 1963, 1969, 1974, 1979, 1983, 1988, 1992, 1997, 2002, 2007 and 2013.6 e
1963 elections were held under a multi-party system with President Jomo
Kenyatta being elected the rst president of the Republic of Kenya. He was
re- elected in 1969 and 1974 under a de facto one party system. President
Kenyatta was succeeded by President Daniel Toroitich Arap Moi who was
elected unopposed in 19787 under a de facto one party system. He was re-
elected unopposed in 1983 and 19888 under a de jure one party system. e
multiparty system was reintroduced in 1991 and subsequent elections have
been held under this regime.9 While the majority of the periodic elections
were held in secret ballot, the 1988 elections utilized the ‘mlolongo, queue
voting system.10 Incidences of violence have been reported on several
occasions following elections even prior to 2007 as seen in the 1992 and 1997
elections.11
On 27th December 2007 Kenyans went to the polls for the 4th time following
the re-introduction of multi-party politics. at election was closely contested
5 According to a report by Internaonal Crisis Group tled Kenya in Crisis, Africa Report No. 137 (2008) and a report
by UKAID: Elecons in Kenya in 2007, following the 2007 elecons in Kenya, violence erupted in various parts of the
country. At the end over 1000 people lost their lives and hundreds of thousands were displaced from their homes.
A report by the African Union Elecon Observer Mission to the 31st July 2013 Harmonised Elecons in the Republic
of Zimbabwe and a report by the Internaonal Crisis Group tled Zimbab we’s Election: Mugabe’s Last Stand, Africa
Brieng No. 95 (2013) violence erupted in the country following the 2008 elecons. The Internaonal Coalion
for the Responsibility to Protect, hp://www.responsibilitytoprotect.org/index.php/crises/crisis-in-zimbabwe, at,
6 February 2016, reported that human rights violaons including torture, mulaons and rape were perpetrated.
6 K Kanyinga, Kenya Democracy and Political Participation (2014).
7 Commonwealth Observer Group, Kenya Gene ral Election: 4 Marc h 2013: Report of the C ommonwealth Ob server
Group (2013) 3.
8 Commonwealth Observer Group, Kenya Gene ral Election: 4 Marc h 2013: Report of the C ommonwealth Ob server
Group (2013) 3.
9 K Kanyinga, Kenya Democracy and Political Participation (2014).
10 C M Peter and F Kopsieker (eds), Po litical Succes sion in East Afric a: in Search for a Limi ted Leadership (2006) 30.
11 Human Rights Watch, Divi de and Rule- State Sp onsored Ethnic Viol ence in Kenya (1993); E Kanyongolo & J Lunn,
Kenya Post-election Political Violence (1998); C M Peter and F Kopsieker (eds), Political Succes sion In East Africa:
In Search fo r a Limited Leadership (2006) 33.
3
Balancing the Scales of Electoral Justice
and competitive. As opposed to being a democratic process where winners
would emerge and losers prepare for a future election, the declaration of
the Presidential results on 30th December 2007 was followed by violence in
several parts of the country. e violence went on for close to two months.
It took the intervention of the international community and mediation
by a panel of Eminent African Personalities led by former United Nations
Secretary General, Ko Annan, to broker a settlement. 2007, the Electoral
Commission of Kenya (ECK), conducted General Elections as mandated by
the Constitution, then in place.
e 2007 elections were organized against heated campaigns that had started
with the 2005 defeat of a Constitutional referendum in 2005. at loss by
President Kibaki against a combined opposition force led by Honorable
Raila Odinga set the stage for high stake electoral contest in 2007. Violence
broke out in various parts of the country soon aer the announcement of
Honorable Mwai Kibaki as the President elect12 by the Chairman of the ECK,
the late Samuel Kivuitu.13 e violence continued for many weeks resulting in
massive loss of life, displacement, loss and destruction of property.14
In a bid to end the violence, Dr Ko Anan, former Secretary General of
the United Nations, was appointed to and mediated between the two key
protagonists, Mr. Mwai Kibaki and Mr. Raila Odinga.15 e end result
of the mediation talks was the signing of the Kenya National Accord and
Reconciliation Agreement between the two key Principals.16 at agreement
led to the amendment to the Constitution to create the position of a Prime
Minister and eventual formation of a coalition Government with Mwai
Kibaki as President and Raila Odinga as Prime Minister. So as to get to the
root of the election debacle and set the stage for reforms to the framework
and processes for conduct of election, the Independent Review Committee
(IREC), also known as the Kriegler Commission, was appointed.17 e IREC
12 J Geleman, ‘Kenyan Accused by Rights Court is Leading Vote, ‘The New Yor k Times, (New York) 5 March 2013.
13 S Bengali, ‘How Kenya’s elecon was rigged’, MC Clatchy Newspaper, (Washington DC) 31 January 2008.
14 ABC News, ‘Deadly Riong Over Kenyan Elecons Results. Kenya Police Bale Opposion Supporters aer
Mwai Kibaki Re-elected’, ABC News(Nairobi) 31 December 2007; Associated Press, ‘Kenya Death Toll Rises to 103’,
Associated Press, (Nairobi) 31 December 2007; J Geleman, ‘Disputed Vote Plunges Kenya Into Bloodshed’, New
York Times (New York) 31 December 2007; Internaonal Crisis Group, Kenya’s 2013 Elecons (2013); Report of the
Commonwealth Observer Group, Kenya General Elecons 4 March 2012 (2013); Transparency Internaonal Kenya,
Kriegler Commission Report: An Audit of its Implementaon.
15 Transparency Internaonal, Kriegler Commission Report: An Audit of Its Implementation.
16 The Agreement commied the two principals to enacng the Naonal Accord and Reconciliaon Act No. 4 of
2008.
17 The Commission was appointed under the Commission of Inquiry Act Cap 102 and its formaon formally
gazeed through Gazee Noce No. 1983 of 2008.
4
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
analyzed the structure, composition and management of the electoral body
that conducted the elections, the ECK, and the manner in which it carried out
its mandate. IREC comprised six members who were headed by retired South
African Judge, Johann Kriegler.18
e Kriegler Commission19 arrived at various ndings, three of which went
to the very core of the electoral dispute resolution mechanisms that were in
place at the time. Firstly, the disputing parties had no immediate means to
address perceived aws in election results that they could single out during the
election process. ey had to wait until the results were formally announced.
Secondly, the only available recourse for anyone contesting the election results
was the corridors of justice. Courts took months or even years to resolve the
petitions that were led. For instance following the 1997 General Election, 27
election petitions were led. ese petitions dragged on until late 1998 with
at least 5 remaining unconcluded until late 1999. In 2002, 25 petitions were
led, 12 of which were struck out. 3 were concluded in 200720 while 10 others
remained unresolved as Kenyans voted in 2007.21
irdly, citizens lacked faith in the courts. ey cast doubt as to the ability of
the newly appointed Judges, whom President Mwai Kibaki had appointed a
few days before the elections, to solve disputes fairly. Subsequently, the events
following the disputed 2007 elections resulted in calls for an overhaul of the
electoral system that was in place, a review of the electoral laws and reforms
in the Judiciary. ese were seen as important steps to ensure that subsequent
elections would be free, fair and accountable. e 2007 elections have been the
subject of numerous academic writings with the inescapable conclusion that
they led to reversal of Kenyans democratic developments and credentials.22
Both the analysis by scholars and ndings of the Kreigler Commission pointed
to the need for and made recommendations on far reaching Constitutional
and legal reforms to govern the conduct of future elections.
e results of the foregoing was the disbandment of the ECK and its
replacement with an Interim Independent Electoral Commission and Interim
18 Through Gazee Noce No. 1983 of 2008, the President appointed the following IREC Commissioners; Judge
Johann Kriegler (Chairman), Prof. Marangu M’Matere, Francis Angila, Catherine Mumma, Lucy Kambuni and
Horacio Boneo.
19 Government of Kenya, Report of the Independent Review Commission, (2009).
20 Magarini Legislator Harrison Kombe’s elecon peon was among those concluded in 2007. His elecon was
nullied and a by-elecon held. However he won back his seat.
21 K Kanyinga, Kenya Democracy and Political Participation (2014).
22 See for example the series of arcles in K. Kanyinga and D Okello(eds), Tensions and Reversals in Democratic
Transitions: The Kenya 2007 General Elections (2010).
5
Balancing the Scales of Electoral Justice
Independent Boundaries Commission to spearhead electoral reforms. is
included establishing a professional secretariat to conduct future elections,
creation of a new voters’ register, proposals on boundaries delimitation,
introduction of technology in the conduct of elections and legal and reforms.
e reform eorts also culminated in the promulgation of a new Constitution,
the Constitution of Kenya, 2010.
The Promise of the Constuon of Kenya, 2010
e Constitution endowed all sovereign power on the people of Kenya,23
which power could be exercised either directly or through democratically
elected representatives.24 In addition to the Constitution, the Elections Act,
2011, e Independent Electoral and Boundaries Commission Act, 2011 and
the Political Parties Act, 2011 were all enacted so as to provide a reformed
legal and administrative environment for the conduct of elections. is is the
background against which the 2013 elections were conducted. ose elections
were unique in various aspects. About 14,352,545 Kenyans registered as
voters25 while 12,330,028 voted, representing 85.91% voter turnout, the
highest ever recorded.26 is huge voter turnout marked the rst time that
Kenyans were exercising their sovereign rights to elect their representatives
under the Constitution of Kenya, 2010. Secondly it was the rst general
election to be held following the disputed 2007 General Elections. ere was
a lot of anxiety as many feared a reoccurrence of the events of 2007. Finally,
it was a litmus test for the ecacy of the changes that were brought about by
the Constitution.
e Constitution introduced four key reforms relevant to the electoral process.
Firstly, it clearly provides principles that govern elections.27 All elections are
to be free and fair,28 free from violence29 and administered in an impartial,
neutral, ecient, accurate and accountable manner.30 rough this, while all
past elections had been judged against the standard of whether they were free
23 Arcle 1(1) Constuon of Kenya, 2010.
24 Arcle 1(2) Constuon of Kenya.
25 IEBC Voters’ register statistics per county available at, hp://www.iebc.or.ke/index.php/2015-01-15-11-10-24/
press-releases-statements/10, at 8 February 2016.
26 Instute Internaonal Instute for Democracy and Electoral Assistance, Voter tu rnout data for Ken ya, hp://
www.idea.int/vt/countryview.cfm?CountryCode=KE, at 8 February 2016.
27 Arcle 81, Constuon of Kenya, 2010.
28 Arcle 81(e), Constuon of Kenya, 2010.
29 Arcle 81 (e) (ii), Constuon of Kenya, 2010.
30 Arcle 81 (e) (v), Constuon of Kenya, 2010.
6
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
and fair or not, the Constitutional provisions now claried what free and fair
would comprise of in the Kenyan context.
Secondly, it introduced the devolved system of governance.31 As such, the
electorate during the 2013 General Election cast votes for six positions;
President,32 County Governor,33 Senator,34 Women Representative,35
Member of the National Assembly36 and Member of the County Assembly.37
ese was unlike the previous elections when one was required to vote only for
President, Member of Parliament and Councilor. In addition to the increase
in elective positions, devolution would also be fully implemented only aer
the 2013 elections.
irdly, the new Constitution addressed the shortcomings of the electoral
management body that had been identied by the Kriegler Commission.38 It
established a new independent electoral body, the Independent Electoral and
Boundaries Commission (IEBC)39 that is only subject to the Constitution.40
e IEBC is established under Article 88 of the Constitution which also
prescribes the criteria for appointment of the commissioners. It also provides
for the independence of the Commission in the management and conduct
of elections, a critical prerequisite for the legitimacy of the elections and the
elected government.41
Unlike the ECK, the IEBC was not limited only to the conduct of elections,
but its mandate also included the peaceful settlement of electoral disputes.
31 Chapter Eleven of the Constuon of Kenya, 2010 establishes the devolved system of government and its
structure.
32 Arcle 136 of the Constuon of Kenya 2010, provides that the president shall be elected in a naonal elecon
that is carried out in adherence of the Constuon and any Act of Parliament regulang presidenal elecons on
the same day as a general elecon of Members of Parliament.
33 Arcle 180 (1) of the Constuon of Kenya 2010, provides that the county governor shall be elected on the same
day as a general elecon of Members of Parliament.
34 Arcle 98(1) (a) of the Constuon of Kenya 2010, provides that Senate consists of forty seven members each
elected by the registered voters of the counes.
35 Arcle 97(1) (b) of the Constuon of Kenya 2010, provides that membership of the Naonal Assembly consists
of forty seven women, each elected by the registered voters of the counes.
36 Arcle 101(1) of the Constuon of Kenya 2010, provides that a general elecon of members of parliament shall
be held on the second Tuesday in August every h year.
37 Arcle 177(1) (a) provides that membership of the county assembly includes members elected by the registered
voters of the wards on the same day as a general elecon of Members of Parliament.
38 Internaonal Crisis Group, Kenya’s 2013 Elecons (2013).
39 The mandate the Interim Independent Electoral Commission, the interim electoral management body
that conducted the August 2010 referendum came to an end three months aer the promulgaon of the new
Constuon as was provided under Arcle 41 and 41A of the former Constuon.
40 Arcle 88(1), Arcle 88(5) and Arcle 248(2) (c) of the Constuon of Kenya, 2010.
41 E Z Ongoya and W E Oeno, A Handbook on Kenya’s Electoral Laws and System (2010) 1.
7
Balancing the Scales of Electoral Justice
e disputes included those relating to or arising from nominations but
excluding election petitions and disputes subsequent to the declaration
of election results.42 ese disputes were to be settled within seven days.43
Electoral dispute settlement mechanisms were the fourth area of reform.
ese mechanisms were categorized into two. e rst category handled pre-
election disputes. ese included courts,44 the IEBC45 and the Political Parties
Disputes Tribunal (PPDT).46 e second category heard and determined post
election disputes; which was le exclusively to the courts.
According to the Constitution, the Supreme Court has exclusive original
jurisdiction to hear and determine disputes regarding elections to the oce
of president.47 e High Court hears election petitions concerning election
to the oces of County Governor,48 Senator49 and Member of the National
Assembly.50 On the other hand any petition on the election of a Member of a
County Assembly shall be heard and determined by the Resident Magistrates
Courts as designated by the Chief Justice.51
Besides having the exclusive jurisdiction in matters arising from the conduct
of the elections and the declaration of results, the Courts and especially the
High Court have an appellate mandate in disputes from the quasi-judicial
bodies. For instance, there is a right to appeal the decision of the Political
Parties Dispute Tribunal52 to the High Court on matters of law and fact,
and to the Court of Appeal and the Supreme Court on matters of law.53 In
the case of the Electoral Code of Conduct54, the IEBC has the mandate to
oversee its implementation. e IEBC sets up the Electoral Code of Conduct
42 Arcle 88(4) (e) of the Constuon of Kenya, 2010.
43 Secon 74(2) of the Elecons Act 2012 [2011].
44 Internaonal Centre for Policy and Conict and 5 others v The Honorable Aorney General and 4 others of 2013.
The case concerned the suitability of Honorable Uhuru Kenyaa and his deputy on grounds on integrity.
45 The IEBC Dispute Resoluon Commiee decided over 2000 disputes revolving around party lists and more
than 200 decisions touching on internal polical pares’ nominaons, such as Mathew Adams Karauri v TNA. See
Independence Electoral and Boundaries Commission, Dispute Resoluon Commiee Case Digest (2013).
46 Till November 2013, the Tribunal had heard 60 cases. Example, Eugene Wamalwa and 2 others v John K. Munyes
and 2 Others, Complaint Number 1 of 2011. This was the very rst case before the tribunal. See L Awuor and W E
Oeno, Case Digest of the Decisions of the Polical Pares Dispute Tribunal (2013).
47 Arcle 163(3)(a) of the Constuon of Kenya, 2010.
48 Secon 75(1) of the Elecons Act, 2011.
49 Arcle 105(1)(a) of the Constuon of Kenya, 2010.
50 Arcle 105(1) (a) of the Constuon of Kenya, 2010.
51 Secon 75(1A) of the Elecons Act, 2011.
52 Which was established under Secon 39 of the Polical Pares Act to determine disputes arising from polical
pares.
53 Secons 41(2) of the Polical Pares Act, 2011.
54 The Electoral Code of Conduct is the Second Schedule to the Elecons Act, 2011; it was developed in fulllment
of Arcle 84 of the Constuon of Kenya, 2010.
8
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
Enforcement Committee in accordance with Regulation 15 of the Electoral
Code of Conduct as appended to the Elections Act, 2011. In case of any
breach where a ne is imposed, it is required to be registered with the High
Court.55 e reforms to the legal framework, therefore sought to address
the shortcomings in the previous processes for dispute resolution in election
matters.
Based on Kenya’s unhappy history with respect to election-based disputes and
the tendency for the electorate to resort to violence both before56 and aer
the elections, fast track mechanisms were put in place to prioritize the hearing
and nal determination of the 2013 election petitions.57 is decision was
informed by the long periods it took to settle election petitions that were led
aer the previous general elections.58 It was in response to the need to meet
the strict Constitutional and statutory timelines that required that all election
petitions be concluded within one year of the conduct of the General Elections.
In May 2012, the Chief Justice established the Judicial Working Committee on
Elections Preparations (JWCEP) to strengthen and improve the capacity of
the Judiciary through equipping judicial ocers with the knowledge and skills
pivotal to the expeditious resolution of election petitions in a people focused
manner. e JWCEP was to come up with a programme for the Judiciary to
increase the number of judicial ocers and sta to deal with electoral matters
and also to suggest the manner in which the Judiciary could collaborate with
other stakeholders in ensuring eective settlement of electoral disputes.59 e
formation of JWCEP was informed by the experience of the Judiciary in 2007
and the need to ensure that it was better prepared to handle the 2013 elections
and had the condence of the public in its ability and processes.
Following the declaration of the election results in 2013, Kenyans did not resort
to violence on this occasion but instead waited for the Judiciary to determine
the disputes. Public condence in the Judiciary had increased following the
55 Regulaon 8 of the Electoral Code of Conduct.
56 In 1992, clashes broke out as early as October 1991 in areas on the border of Ri Valley, Nyanza, and Western
and connued in December 1992 aer the elecons. See Human Rights Watch, Divide an d Rule- State Sponsored
Ethnic Violence in Kenya (1993) 19.
57 Report of the Commonwealth Observer Group, Kenya General Elecons 4 March 2012 (2013).
58 For instance following the 1997 General Elecon, 27 elecon peons were led. These peons dragged on
unl late 1998 with at least 5 remaining unconcluded unl late 1999. In 2002, 25 peons were led, 12 of which
were struck out, and 3 were concluded in 2007 while 10 others remained unresolved as Kenyans voted in 2007.
59 Judicial Working Commiee on Elecon Preparaon, ‘Post Elecon Report March- September 2013’, (2013).
9
Balancing the Scales of Electoral Justice
implementation of some of the reforms proposed in the Kriegler Report,
and the institutional reforms that were ushered in by the new Constitution.
Domestic and international observer groups praised the judiciary for
the preparations and manner in handled the 2013 election petitions. e
EU Observer Mission in its report on the 2013 elections summarized the
assessment of the Judiciary’s performance in the electoral process thus:
The reforms implemented over the past two years to make Kenyan courts
more independent were absolutely key to the major success of the
2013 Kenyan elecons – the peaceful resoluon of electoral disputes.
Renewed trust in the Kenyan courts meant that Raila Odinga’s challenge
to the presidenal elecon results was directed to the Supreme Court.
The electoral peons put these reforms into pracce, showing that
the Judiciary has made a strong and genuine eort to become a truly
independent instuon of jusce. The number of peons led is an
indicaon that the Judiciary have gone a long way to regaining public
condence since the days of previous elecons, where they suered a total
lack of condence in their independence.60
Ultimately, from the 2013 General Elections, a total of 188 petitions were
led.61 ree petitions were led at the Supreme Court regarding the
Presidential results. Eventually they were consolidated into one and heard
amidst a lot of public attention with the full trial being aired live on local
and international media. is put the Judiciary in the spotlight throughout
the 14-day constitutional timeline it took to hear and decide the petition. As
indicated in this publication all the cases led have been disposed of by the
Magistrate’s Courts, High Court and Court of Appeal. Only a few remain
outstanding at the Supreme Court at the time of the writing.
History of the Judiciary Before 2013
e recent experience of elections in Kenya as narrated above can be
contrasted with that of the post-independence period in order to demonstrate
the progress that has clearly been made over the years, as well as to highlight
the lingering similarities. In the past, the Judiciary in Kenya was viewed as
corrupt, slow in hearing and determining cases62, and a puppet of the State,
60 EU EOM, European Union Electi on Observatio n Mission to Kenya, Gene ral Election 2013 Fin al Report (2013), at
hp://www.eods.eu/library/eu-eom-kenya-2013-nal-report_en.pdf at February 2, 2016.
61 70 against members of the Naonal Assembly, 13 against members of Senate, 24 against County Governors, 9
against Women Representave, 67 against County Assembly and 5 against Speakers of County Assemblies.
62 Internaonal Crisis Group, Kenya’s 2013 Elections (2013).
10
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
especially the ruling party. e Executive constantly acted in total disregard of
the decisions of courts. For instance in the 1974 election petition of Raphael
S K Mbondo v L D Galgalo & Paul Joseph Ngei,63 popularly known as the Ngei
case, the election court found Mr. Ngei guilty of an electoral oence and he was
barred from contesting for the Parliamentary seat for a period of ve years.
However, the then President, Jomo Kenyatta ordered the amendment of his
constitutional powers of mercy or clemency to allow him to pardon election
oenders.64 us Mr Ngei immediately received presidential pardon and was
reinstated in the race. Such acts reected the non-authoritative nature of the
Judiciary then, which was clearly dominated by the Executive. Although the
1969 Constitution comprised checks and balances to public power, it was
amended time and again to centralize power to the Presidency. e result
was the weakening of all other organs of the government and especially the
Judiciary.65
e relationship between the Judiciary and the Executive ceased being one
of tolerance but one of subordination and corruption.66 In 1998 following
claims of incompetency, ineciency and corruption in the Judiciary, the
then Chief Justice, Zacchaeus Chesoni, appointed a six man committee to
investigate the claims.67 e Committee headed by Retired Appellate Judge
Richard Kwach established that the perception of corruption in the Judiciary
had been validated by practices of the judges of the courts from the most
superior to the lowest levels.
e Courts of yester years also relied heavily on technicalities to throw out
cases. For instance in the case of Kenneth S.N. Matiba v Attorney General68
the applicant, a presidential aspirant challenged his detention without trial.
e High Court dismissed his application on grounds that the application
did not cite the provisions of the Constitution contravened. In another case
63 Raphael S K Mb ondo v L D Galgalo& Paul J oseph Ngei Elecon Peon No. 16 of 1974.
64 Paralegal Support Network, The Paralegal’s Handbook 25. Available at, hp://www.icj-kenya.org/dmdocuments/
books/Paralegal_Handbook.pdf, at 8 February 2016.
65 See Jusce J.B. Ojwang’ Ruling in Joseph Kimani Gathungu v the Aorney General & 5 others (2010) eKLR at
Page 16.
66 W. Wahiu,’ Independence and Accountability of the Judiciary in Kenya’ in F.W.Jjuuko (eds) The ind ependence o f
the Judic iary and the Rule of Law (2001) 107.
67 Internaonal Commission of Jurists Kenya, Strengthening Judicial Reforms in Kenya Volume IV Performance
indicators: Public Percepons of the Court Divisions, Children’s Court and the An - Corrupon Court. See, hp://
pdf.usaid.gov/pdf_docs/Pnacw007.pdf, at 8 February 2016.
68 Kenneth S.N . Matiba v Attorney G eneral Miscellaneous Applicaon No.666 of 1990.
11
Balancing the Scales of Electoral Justice
Kenneth Stanley Matiba vs. Daniel Arap Moi69 the Court of Appeal dismissed
the election petition led by the petitioner contesting the 1992 presidential
election on grounds that the petition was signed by his wife and that it had not
been personally served on the respondent who was the then President. Clearly,
there were eorts to frustrate Mr. Matibas presidential bid. Consequently,
the Judiciary became one of the most criticized arms of Government by the
public in Kenya. As regards the Judiciary, in its report titled ‘e Peoples’
Choice: e Report of the Constitution of Kenya Review Commission,’ the
Constitution of Kenya Review Commission 2002 noted that, “the Judiciary
rivals politicians and the police for the most criticized sector of Kenyan public
society today. For ordinary Kenyans the issues of delay, expense and corruption
are the most worrying. For lawyers there is concern about competence and lack
of independence.70
All these factors led to loss of condence in the judiciary as it was evidently not an
independent dispute settlement body. It was for these reasons that the Judiciar y
was one of the key sectors targeted for reforms under the Constitution, 2010.
Article 160 of the Constitution guarantees the independence of the Judiciary
stating that in exercising their judicial authority, judges are only subject to the
Constitution and the law and shall not be subject to the control or direction
of any person or authority.71 Judges are appointed through a transparent
and public process. e Chief Justice, the Deputy Chief and the Judges are
appointed by the President in accordance with the recommendation of the
Judicial Service Commission (JSC).72 e Chief Justice and the Deputy Chief
Justice are appointed subject to approval by the National Assembly through
an exercise of public vetting. 73 e removal of Judges is governed by Article
168 which elaborately provides for the procedure to be followed for removal.
Of key importance to the said removal process is the emphasis on the role of
the JSC and the need for the appointment of a tribunal. e tribunal enquires
into the matter expeditiously and reports on the facts before making binding
recommendations to the President as to whether a removal is warranted.74
To fur ther bolster the condence of the public in the Judiciary as an institution,
the Judges and Magistrates Vetting Board was established in accordance
69 Kenneth Stanl ey Matiba vs. Daniel A rap Moi Court of Appeal Elecon Peon No.27 of 1993.
70 Judges and Magistrates Veng Board, ‘Interim Report September 2011-February 2013’ (2013).
71 Arcle 160(1) of the Constuon of Kenya, 2010.
72 Arcle 166 (1) (a) of the Constuon of Kenya 2010.
73 Arcle 166(1)(a) of the Constuon of Kenya, 2010.
74 Arcle 168(5),(6),(7),(8),(9),(10) of the Constuon of Kenya 2010.
12
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
with Section 23 of the Sixth Schedule of the Constitution75 to determine the
suitability of all judges and magistrates who were in oce on the eective date
to continue to serve in accordance with the values and principles set out in
Articles 1076 and 15977 of the Constitution.78
Assessing Dispute Resoluon in 2013
In light of the foregoing, this publication assesses the workings of the electoral
dispute resolution mechanisms as they were deployed following the 2013
General Elections and connected issues. While the book appreciated that
dispute resolution involves other agencies, notably the IEBC, PPDT and
Political Parties Internal mechanisms, the publication focusses largely on
dispute resolution by the Judiciary. e various Chapters of the Book explain
and expound three fundamental issues: Firstly, what was the process available
for resolution of electoral disputes during the 2013 General Elections by
the Judiciary? Secondly, what were the key principles, norms and standards
expected to be applied during the resolution of the said disputes; and lastly,
who were the key actors involved in the operation and execution of the various
roles prescribed by the Judiciary’s electoral dispute resolution mechanism and
what was their conduct? e Book provides recommendations that are useful
in future electoral disputes resolution processes. e three fundamental issues
mentioned have been addressed extensively in the ten chapters that form the
content of this Book, which is authored by distinguished legal minds.
Chapter One authored by Hon. Justice David Majanja, examines the internal
eorts by the Judiciary in ensuring an ecient and eective electoral process in
Kenya. e Chapter particularly focuses on the Judicial Working Committee
on Elections Preparations (JWCEP) established in preparation for the 2013
General Election. What was the rationale for its formation? What was its
composition? How were its operations? What challenges did it encounter and
nally, what lessons can be carried into the future from the experiences of
the inaugural JWCEP? e Chapter seeks to answer these questions by an in-
75 The Veng of Judges and Magistrates Act of 2011 was enacted ‘to provide for the veng of judges and
magistrates pursuant to Secon 23 of the Sixth Schedule to the Constuon; to provide for the establishment,
powers and funcons of the Judges and Magistrates Veng Board and for connected purposes.’
76 This provides for the naonal values including rule of law, equity, social jusce, equality, human rights, integrity,
transparency and accountability.
77 This Arcle provides the guiding principles of Jusce; jusce should be done to all irrespecve of status, it should
not be delayed and it should be administered without undue regard to procedural technicalies.
78 Secon 23(1) of the Sixth Schedule of the Constuon of Kenya, 2010.
13
Balancing the Scales of Electoral Justice
depth interrogation of the workings and outputs of the Committee and views
of stakeholders.
In Chapter Two, Francis Ang’ila critically analyzes the decision in the Raila
Odinga case in light of the legal standards for presidential elections in Kenya.
How did the Supreme Court of Kenya apply the legal standards for the
presidential election dispute in Kenya? What is the rationale for the existing
presidential election dispute resolution mechanism? is Chapter also
interrogates the legal reasoning in the Raila Odinga case. Based on the ensuing
analysis, the author argues that while the case settled some jurisprudential
issues relating to the conduct of Presidential elections in Kenya, it is faulty
on some areas. e author is particularly critical of the Court’s treatment
of standards of the conduct of elections, pointing out that in the case of
the Register for elections, for example, the decision of the Court has the
implications of excusing IEBC from adhering with highest international
standards as enshrined in the Country’s Constitution. e author concludes
by arguing that there will be need for a reconsideration of some aspects of
the case in future so as to ensure that a delicate balance is struck between the
restraint not to invalidate presidential election petitions and the imperative
to ensure that those elections only stand if they adhere to the constitutional
principles and standards of free and fair elections.
Chapter Three, co-authored by Heidi Evelyn and Waikwa Nyoike, examines
the constitutional threshold for elections in Kenya. It interrogates such
issues as what the consequence of Section 83 of the Elections Act are? e
Section provides that ‘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 aect the
result of the election. Does it undermine the election principles under the 2010
Constitution? e Chapter examines the jurisprudential approach to the issue
with a critique of the Raila Odinga case and in subsequent decisions. It argues
that Section 83 of the Elections Act and the decision of the Courts following
the 2013 elections have departed from the realisation of the Constitutional
promise of free and fair elections. ey state in their chapter that:
The Raila Odinga Case decision, however, is replete with references to
the jurisprudence of other jurisdicons and silent on the constuonal
principles concerning elecons. Therefore, it is the posion of the authors
14
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
that Secon 83 of the Elecons Act has distracted the courts from the
development of a true constuonal threshold for valid elecons.
Moreover, Kenya’s post-2010 electoral jurisprudence thus far has actually
undermined the constuonal standards laid down for tesng the validity
of elecons and established a legal test enrely contrary to the aims of the
2010 Constuon.
In Chapter Four, Muthomi iankolu discusses the appellate jurisdiction
in election disputes. At the onset, the author briey discusses the right to
appeal against the decisions of election courts in the Pre- 2010 era and the
Post- 2010 era. e question posed is whether the transformative intent of
the Constitution with regards to the handling of election petitions appears
illusive? Based on a review of appeals from the High Court to the Court
of Appeal and from the Court of Appeal to the Supreme Court, the author
argues that even though amendments were made to the Elections Act in 2013
to provide for appeals in election matters, the manner in which that right has
been applied by the courts does not improve on the pre-2010 jurisprudence.
e author is, particularly critical of the Supreme Court’s admission of
jurisdiction in election cases on Appeal from the Court of Appeal, arguing
that the court does not have a general appellate jurisdiction over decisions
from the Court of Appeal in election matters. Despite this, the court has used
the two tests of either matters involving interpretation of the Constitution, or
those of a substantial public interest to admit numerous cases on appeal. is
has been done, the paper argues through relaxation of the test to be applied
in using the criteria. As a consequence, Muthomi asserts that “ e Supreme
Court, however, has ‘gluttonously’ exercised appellate jurisdiction in electoral
disputes, apparently on the erroneous supposition that such disputes generally
meet the jurisdictional thresholds set out in the 2010 constitution.” e author
also faults the Supreme Court on the threshold to be applied in determining
whether the appellate courts have jurisdiction on matters of fact, pointing out
that the Supreme Court equivocates on this issue developing a contradictory
jurisprudence in the process. e author concludes that the approach of
focusing on technicalities denies the country the expectations from the 2010
Constitution. Further he asserts that the legislative provisions that restrict
courts from addressing issue of facts on appeal are unconstitutional. He
concludes that the Munya jurisprudence from the Supreme Court is bad law
and should be overturned in a future case before the Supreme Court.
Chapter Five, authored by Professor Kwasi Prempeh, is a comparative
discussion of election petitions across the world. It situates the analysis of
15
Balancing the Scales of Electoral Justice
the Supreme Court decision in the Raia Odinga case in that perspective. e
author starts by pointing out the inherent challenges that the judiciary faces
when they are called upon to decide what are essentially political disputes,
through election petitions. He traces the concerns with courts dealing with
election petitions to the warning by Lord Chief Justice Alexander Cockburn
of England, who in 1868 argued that giving judges jurisdiction over essentially
political disputes would compromise the independence of the judiciary and
bring their image into public disrepute. Since then, though and despite this
warning the judiciary across the world has emerged as a nal arbiter in
electoral contests whenever disputes arise. Having established that the global
trend is to settle election related disputes through judicial means, the Chapter
seeks to draw comparisons between election petitions cutting across various
jurisdictions. What are the common concerns, principles and rules in both
the substantial and procedural laws governing election disputes? What are
the disparities if any? How does Kenya’s current legal framework for litigating
and resolving election petitions compare with other jurisdictions? What are
the implications of Kenya’s emerging jurisprudence on election petitions on
electoral justice, and the future conduct and credibility of elections in Kenya’s
politically volatile environment? Professor Prempeh concludes that in Kenya’s
experience with election petitions compares with many other countries
across the world. He argues that the law as designed is extremely strict and
those strictness are borne largely by the Petitioners especially in Presidential
disputes. is explains why the amount of criticism that the Kenyan judiciary
has received on its election dispute mechanisms are mainly as a result of
the handling of the Raila Odinga case. e author concludes by faulting
the current legal framework for resolving election disputes for conferring
advantage on the Party that wins an election, but avers that this shortcoming
cannot be blamed on the judiciary alone. He makes recommendations to
ensure that election disputes in Presidential petitions are dealt with in a much
more satisfactory manner in future.
Chapter Six address key gender issues in Kenya’s electoral politics with
a specic focus on the ‘unrealized Constitutional promise. e authors,
Professors Wanjiku Mukabi Kabira and Patricia Kameri Mbote, look at the
realization of the promise of gender equality and non-discrimination in
electoral politics. e authors contextualize the issue within history, identify
critical milestones, and canvass Constitutional provisions addressing gender
equality with particular attention paid to women’s representation in elective
16
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
politics. e authors trace the struggle for womens representation in elective
politics and hail the adoption of the Constitution of Kenya, 2010 as providing
a ray of hope for equity in the involvement of women in politics and elective
leadership. ey argue that despite the transformative provisions on gender
in the Constitution, the results of the 2013 elections was still unable to ensure
that the requirement of not more than two thirds of either gender are in
elective positions was not realized. For some positions like Governors and
Senators, no women were directly elected. While the numbers of women in
political leadership positions increased during the 2013 elections, the increase
is largely attributable to armative action provisions in the Constitution.
e authors, based on a gender analysis, discuss the process of the 2013
elections from nominations, campaign to the voting process to make the case
that despite c onstitutional developments, political contests in Kenyan are still
male dominated. On dispute resolution, they assert that the Judiciary has had
very few occasions to deal with gender issues arising out of electoral contests
and in those few instances, the quality of emerging jurisprudence in weak.
ey conclude by making a case for more robust treatment by the judiciary of
gender in electoral disputes, starting from supporting full implementation of
the two-thirds gender principle that the Supreme Court ruled on but whose
deadline for realization has since elapsed.
In Chapter Seven, Elisha Z Ongoya, analyzes an issue that is at the heart of
litigating election petitions in Kenya; evidence, which connotes proof. At the
beginning, the author identies various concerns around the rules, principles
and practice of evidence law as have been applied by courts exercising
jurisdiction over election disputes in Kenya. is is followed by a scrutiny of
the rules, their underlying philosophy and the manner in which courts have
applied them. In concluding, the author while noting the tremendous changes
in the normative contents of the Constitution, statute and rules of procedure
regarding evidence in election petitions, opines that the Courts have applied
these in a contradictory and unsatisfactory manner. He also addresses an
issue that is oen overlooked, which is the preparations that candidates
require to make even before elections are completed, in collecting evidence as
anticipation of possible election petitions.
Scrutiny is an integral aspect of any democratic electoral process intended to
demonstrate openness in the entire process.
17
Balancing the Scales of Electoral Justice
In Chapter Eight, Hon. Justice David K. Maraga examines the question of
scrutiny of contested material in electoral disputes with specic focus on
the Kenyan judicial perspective. e author discusses scrutiny in the entire
electoral process; what does it entail?; when and on what basis can an order
for scrutiny be granted?; how is the exercise of scrutiny to be carried out?; and
the application of the result of the exercise. Indeed the Supreme Court’s order
for scrutiny of select contested election material during the Raila Odinga case
is prominently featured in this Chapter. e author makes the case, that while
focus is normally on court ordered scrutiny, for free and fair elections, there
requires to be more detailed frameworks for and adoption of the concept of
scrutiny throughout the electoral chain. In his view, the electoral management
body should avail parties the opportunity to scrutinize the process in detail
and raise any objections they have then. Issues like voter registers should be
dealt with way before elections and any disputes relating to them dealt with
by the Judiciary before Election Day. He concludes that despite the reluctance
by the Judiciary to order for scrutiny, it is an important aspect of the electoral
dispute resolution mechanism and needs to be utilized in appropriate cases.
Chapter Nine discusses the jurisprudence emerging from the Raila Odinga
case on the issue of amicus curiae. e author, Dr. Collins Odote, argues for a
shi in the treatment of amicus away from representation of private partisan
interests to a policy tool for ventilating larger societal and public interest
matters. At the end, the author concludes that the use of amicus curiae requires
a careful balance in the context of election petitions, which although partisan
and private in their nature, raise wider constitutional and public interest issues.
He interrogates the jurisprudence emerging from the Courts on admission of
amicus curiae and based on discussion of comparative jurisprudence opines
that there have been developments across the world which have departed the
concept from its traditional position of a disinterested by-stander. Kenyan
courts should, consequently, adapt the accordingly and adopt a position of
admitting amicus but placing conditions on such admission to govern the
limits of their participation once admitted.
Chapter Ten is authored by Dr. Linda Musumba. e Chapter examines
the quality of lawyering as demonstrated by the advocates representing the
various parties to the Presidential election petition, the Raila Odinga case.
e Chapter interrogates the concept of lawyering and in particular, what the
components of good lawyering are. Key questions include how the advocates
18
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
in the Raila Odinga case delivered on their duties to their respective clients in
the midst of the pressure, public scrutiny and limited time characterizing the
petition. e Chapter also provides a modest comparative analysis with the
lawyering evident in other equally high prole cases prosecuted under more
or less similar circumstances though not necessarily election petitions. ese
include two United States of America cases namely Bush vs. Gore case and the
O.J Simpson case, and most recently the South African murder trial against
Oscar Pistorius.
Notably, a key aim for the publication of this Book is the provision of scope
and opportunity for the key players in the impending 2017 General Elections
to learn lessons from the preceding 2013 electoral experience. is pertains
particularly to the stable mediation of post elections disputes in a manner
that avoids an unnecessary repeat of the post-election conict and violence
reminiscent of some of the previous general elections. e Book does not
purport to have covered every possible angle or perspective possible as regards
the 2013 electoral dispute resolution mechanism and related issues. In fact, it
commences a conversation that can be extended by the various agencies and
actors in the elections arena in Kenya, and indeed abroad, towards making
elections processes a safe and tolerable experience for respective populations.
19
I
Judiciary’s Quest for a Speedy and Just
Electoral Dispute Resolution Mechanism:
Lessons from Kenyas 2013 Elections
H. J D M*
Abstract
Free, fair and peaceful elections are a sine qua non for democracy and good
governance. Kenya’s history of electoral processes since the multiparty era have
depicted highly contested, ‘do or die’ processes. While coming at the tail end of
the electoral management process, dispute resolution plays a critical part in
ensuring free and fair elections. As an independent arm of government, the
judiciary bears a primary role in ensuring that election petitions are fairly and
expeditiously resolved.
Determined to play its role in ensuring a smooth electoral process, and against
the backdrop of a haunting past, Kenya’s Judiciary established an in-house
committee, the Judiciary Working Committee on Elections Preparations
(JWCEP) on May 10 2012, in the run up to the rst elections under the country’s
2010 Constitution. e Committee had the mandate of advising the Judiciary
on measures for ecient electoral dispute resolution (EDR), training judicial
ocers and support sta on eective electoral dispute management, monitoring
and evaluating EDR in the courts, liaising with stakeholders and advising the
Judiciary on public engagement.
* The author acknowledges the assistance of Ms. Petronella Mukaindo and Ms. Lucianna Thuo in preparing this
paper.
20
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
is Chapter examines the Judiciary’s internal eorts at facilitating an ecient
and eective electoral process. In particular, it retraces the rationale for the
formation of the JWCEP in the run up to the March 2013 General Elections, its
composition and mode of operation and appurtenant challenges. It also provides
a record of vital insights and lessons for operation of similar bodies in future.
1.0 Introducon
1.1 Seng the Context
The repeal of section 2A of the Independence Constitution in 1992, a
decade aer its introduction, ushered in a plurality of divergent views and
political clamour for a more democratic space.1 is progressive development,
however, did not immediately translate to an expanded democratic space. It
took two subsequent electoral cycles for the tangible benets of this plurality
to be practically felt. In 2002, the opposition was elected into government
eectively bringing an end to the monopoly of a single ruling party in Kenyan
politics that had lasted decades. e multiparty era also brought about a
spirited agitation by non-state actors for good governance and decentralisation
of power that had hitherto been concentrated in the Executive. is formed
fodder for subsequent heated push for constitutional reforms.
Prior to the 2007 elections, the Judiciary laboured under a crisis of condence
for various reasons. First, due to various previous constitutional amendments
that amassed power to a powerful presidency, the President had complete
discretion to appoint judges. Second, judges did not enjoy security of tenure.2
ird, EDR was not concluded timeously, with the result that election petitions
would in some cases outlive the tenure of the incumbent whose election was
challenged. Lack of proper case management had seen cases drag on for
ages.3 Moreover, no presidential election petition had ever been determined
on merit, with each petition eventually being dismissed on technicalities,
such as improper service. Even though Haroun Mwau had led a case against
Honourable Moi, which went to trial it was still determined on the technical
issue of the size of foolscaps used to capture signatures of supports by a
presidential candidate. Undue regard to procedural technicalities dealt a fatal
blow to justice in election petitions.
1 It was however not unl 1997 that a subsequent constuonal amendment added secon 1A which stated
expressly that Kenya is a mulparty state. The new secon 1A introduced by the Constuon of Kenya (Amendment)
Act 1997 (No. 9 of 1997) 2 spulated that, “The Republic of Kenya shall be a mul-party democrac state”.
2 See the Constuon of Kenya (Amendment) Act No. 4 of 1988.
21
Balancing the Scales of Electoral Justice
e 2007/2008 post-election violence that followed the disputed 2007
presidential elections underlined the urgency for comprehensive constitutional
reforms. e National Accord Reconciliation Agreement signed on
28th February 2008 led by former United Nations Secretary General, Dr Ko
Annan as chair of the Panel of Eminent African Personalities brokered a
settlement, the Kenya National Dialogue and Reconciliation Accord, which
resulted in a coalition government and a common commitment for urgent
constitutional reform. Agenda item IV of the agreement emphasized on
constitutional, legal and institutional reforms. Governance and electoral
reforms was a critical component of this. e Constitution of Kenya
(Amendment) Act of 2008 would see the disbandment of the Electoral
Commission of Kenya (ECK) through repeal of section 41 of the Constitution
and in its place establishment of the Interim Independent Electoral
Commission (IIEC).4 An interim Independent of Boundaries Review
Commission also concomitantly established would oversee the delimitation
of electoral boundaries in the country.
e Commission of Inquiry appointed by then President Kibaki to inquire
into all the aspects of the general election held on 27 December 2007 (the
Independent Review Commission (IREC) or ‘Kriegler Commission’ as it was
popularly known) had, in its terms of reference, the mandate to, “analyse
the constitutional and legal framework to establish the basis for the conduct
of the 2007 elections and to identify any weaknesses or inconsistencies in
the electoral legislation.” It was also tasked with recommending “electoral
reform including constitutional, legislative, operational and institutional
aspects, as well as the accountability mechanisms for Electoral Commission
of Kenya Commissioners and sta.5 IREC reported wide public outcry
about the powers of the Presidency and the weaknesses of the ‘winner-take-
all system’ of elections.6 Constitutional change was inevitable, to redress the
balance of power between the various organs of government and address
3 See for instance, a report on the civic elecons suit emanang from the disputed 1997 General Elecons, Kiarathe
Ward in Murang’a county that was sll ongoing, close to two decades aer the elecon(M Mwangi, ‘Standard,
Friday, 15 November 2013 ‘Court yet to determine 1997 civic poll peon’ at, hp://www.standardmedia.co.ke/
arcle/2000097714/court-yet-to-determine-1997-civic-poll-peon, at 10 January, 2016. See also Alice Wahome v
James Maina Kamau & 2 Others Elecon Peon 3 of 2008 relang to the 2007 elecons in Kandara constuency
which had not been concluded by the 2013 elecons.
4 The Constuon of Kenya (Amendment) Act, No 10 of 2008. The Act commenced operaons on 29 December
2008.
5 See Gazee Noce Nos 1982 and 1983 dated 14 March 2008, Kenya Gazee Vol. CX-No. 23.
6 IREC, ‘Report of the Independent Review Commission on the General Elecons held in Kenya on 27th December
2007.
22
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
malpractices attributed to gaps or specic provisions of the Constitution
and other election-related laws. e ethnic violence that followed the 1992,
1997 and 2007 elections has been attributed to bad governance, lack of strong
institutions or failure to respect those institutions, which resulted in Kenya
becoming what has been described elsewhere as an autocratic State.7 One
of the characteristics of an autocratic State is lack of citizen participation in
governance.8 By the 2007 elections, a history of marginalization, coupled with
the near media blackout during the announcement of the presidential election
results heightened suspicions of election rigging that were already rampant.9
One of the key recommendations of IREC was that the then existing rules
and regulations on the procedures of election petitions be repealed and
replaced with new ones that would ensure that petitions are heard in a just
and timely manner.10 e IREC also recommended the establishment of a
special Electoral Dispute Resolution Court to handle matters falling outside
the jurisdiction of the electoral commission and any post-election disputes,
including election petitions.11
e perception that Government institutions including the Judiciary were not
independent of the Executive and lacked integrity fuelled the violence that
erupted following the 2007 polls. According to the Commission of Inquiry
into Post-Election Violence (CIPEV) (‘the Waki Commission’), the fact that
public sector institutions were seen as biased and unlikely to follow the rules
increased the tendency to violence among members of the public.12 is was
a clear message that there was a perception of partiality and lack of condence
in the Kenyan Judiciary by a signicant section of the public. So dented was
the image of the Judiciary that in his speech to the nation barely a hundred
days aer assuming oce in 2011, the new Chief Justice described the state
of aairs thus, ‘We found an institution so frail in its structures; so thin on
resources; so low on its condence; so decient in integrity; so weak in its
7 PA Opondo ‘Ethnic polics and post-elecon violence of 2007/8 in Kenya’ (2014) 6 African Journal o f History and
Culture 59, 60.
8 Odhiambo-Mbai, C (2003) ‘The rise and fall of the autocrac state in Kenya’ cited in Opondo, as above.
9 See GM Musila, ‘Realizing the Transformave Promise of the 2010 Constuon and New Electoral Laws’ in GM
Musila (ed) Handboo k on Election Dispute s in Kenya (2013) 12.
10 IREC, “Report of the Independent Review Commission on the General Elecons held in Kenya on 27th December
2007”, 153.
11 As above.
12 CIPEV, Report of the Commission of Inquiry into Post-Elecon Violence, (2008), 28-29.
23
Balancing the Scales of Electoral Justice
public support that to have expected it to deliver justice was to be wildly
optimistic. We found a Judiciary that was designed to fail.13
According to the Waki Commission, “nothing short of comprehensive
constitutional reforms [would] restore the desired condence and trust in the
judiciary”.14 No wonder therefore, as part of the change in the governance
framework, an overhaul of the electoral system and its management was top
on the list of key constitutional reforms.15
1.2 Constuonal Imperaves
On 4th August 2010, the eorts at constitution making nally bore fruit leading
to the adoption of the country’s current Constitution, marking a new renewal,
the second rebirth for the hitherto wounded nation. e Constitution of Kenya
2010 introduced key reforms in governance and electoral system. It armed
that the presidential term would be limited to a maximum two terms 16 and
reformed the rules for one to be elected as a President.17 As regards EDR,
the Constitution introduced mandatory time limits within which election
petitions were to be concluded by courts of rst instance: e Supreme Court
was bound to hear and determine a presidential election within fourteen days
of ling of petition18 while the High court would determine parliamentary
elections within six months. e law also gave jurisdiction to Magistrates
Courts to hear and determine the question of validity of election of a candidate
to the oce of member of County Assembly. Equally, the Resident Magistrates
Courts were required to determine the election disputes within six months.
19 e Elections Act was also amended to require that appeals be disposed
of within 6 months of ling.20 ese changes were all in tandem with earlier
recommendations of IREC.21 e requirement to dispose of election petitions
within the prescribed timelines brought pressure to bear upon the Judiciary to
13 Hon the Chief Jusce Dr Willy Mutunga, ‘Progress Report on the Transformaon of the Judiciary: The First
Hundred and Twenty Days (19th October, 2011). Available at, hp://kenyalaw.org/kenyalawblog/progress-report-
on-the-transformaon-of-the-judiciary/, at 15 December 2015.
14 CIPEV, above n 12, 461.
15 The Constuon of Kenya Review Commission (CKRC) had in fact earlier on formed an independent body to
advise it on constuonal reforms regarding the Kenya Judiciary. The Advisory body’s report of May 2002 contains
signicant recommendaons on the independence of the Judiciary.
16 Arcle 142(2) Constuon of Kenya.
17 Arcle 137 and 128, Constuon of Kenya.
18 Arcle 140(2) Constuon of Kenya.
19 Arcle 105 Constuon and Secon 75 (1) and (2) Elecons Act, 2011.
20 See s 85 A of the Elecons Act, 2011 as amended by Statute Law (Miscellaneous Amendments) (No. 2) Act No.
47 of 2012.
21 Above, note 10.
24
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
deliver electoral justice satisfactorily within the prescribed constitutional and
statutory timelines.
Furthermore, as a rst, judicial independence was now explicitly secured
under Chapter Ten of the Constitution.22 is was a signicant win. No
longer was the judicial arm to be whimsically subjected to Executive control
and perceived as the lesser, ‘third’ arm of government; it was a co-equal arm
of government to the executive and legislature. A fund for the Judiciary was
also established, paving room for nancial independence.23 ere was now in
place principles of electoral system24 and for the rst time, Kenya could boast
of national values and principles of governance enshrined under Article 10 of
the Constitution. ere was further emphasis on constitutional supremacy.25
e vesting of sovereignty in the people also demanded a radical shi from
the old ways of doing things. Like other arms and state organs, Article 159
of the Constitution established fundamental principles governing exercise of
judicial authority. Of signicance was the provision that judicial authority was
derived from the people.26 is demanded a shi in focus to mwananchi-
based justice. People-focused delivery of justice meant and included access to
and expeditious delivery of justice. According to the principles, the judiciary
was to discharge justice expeditiously to all without delay or undue regard to
technicalities. It was also tasked with protecting and promoting the purpose
and principles of the Constitution.27 All these factors formed the milieu that
provided the much-needed impetus for judicial reforms.
ere were more radical changes introduced by the Constitution of Kenya,
2010. All judicial ocers holding oce at the time of the promulgation of
the Constitution were to be vetted to determine their suitability to remain
in oce.28 e Constitution further required that the then incumbent
Chief Justice vacates oce within six months of the promulgation of the
Constitution,29 and either choose to retire from the Judiciary30 or continue to
serve as a Court of Appeal Judge, subject to the vetting process.31
22 Arcle 160 Constuon.
23 Arcle 173 Constuon. However, at the me of wring, the legislaon for the regulaon pursuant to Arcle
173(5) was yet to be enacted.
24 Arcle 81 Constuon.
25 Arcle 2 Constuon.
26 Similar to Arcle 1 of the Constuon that underlines the sovereignty of the people.
27 See Arcle 159(2) of the Constuon on the principles to guide the exercise of judicial authority.
28 Schedule 6 of the Constuon, Secon 23.
29 Above, Secon 24(1).
30 Above, Secon 24(1) (a).
31 Above, Secon 24(1) (b).
25
Balancing the Scales of Electoral Justice
Alongside the Constitution making eorts, there had all along been
parallel reform eorts targeting the judicial sector. Various committees and
commissions had been established in a bid to reform the judiciary. ese
picked up in earnest in the 1990s with the establishment in 1992 of the
Committee on the Terms and Conditions of Service of the Judiciary (‘the Kotut
committee) followed by the Committee on the Administration of Justice (‘the
Kwach Committee’) and several others. eir mission was similar, that of
bringing the judicial institution on track as the custodian of justice.
1.3 Judicial Transformaon Framework
It was perhaps the Judiciary’s Transformation Framework (2012-2016) or
‘JTF’ that provided the much needed foundation for institutional renewal.
is blue print packaged a four-year strategy for judicial transformation in
line with the newly enshrined constitutional principles. It was envisaged that
through the JTF, the judiciary would be repositioned to an engine of societal
transformation that responds to the needs of Kenya’s diverse society.32
e JTF was anchored on four pillars whose ultimate goal was the tagline,
equitable access to and expeditious delivery of justice.” e four pillars are;
people-focused delivery of justice, transformational leadership, organizational
culture and professional sta, adequate nancial resources and physical
infrastructure and harnessing technology as an enabler of justice. Under each
of these pillars were specic key result areas, totalling ten in number. JWCEP
was rmly rooted on the rst pillar, that is, people focused delivery of justice.
e JTF would form and inform the roadmap for judicial transformation.
e 2013 General Elections was historic and unprecedented. It was unique
in several respects; it was the rst election under the new Constitution and
electoral laws; it was the rst to incorporate elective armative action seats
and the rst to include diaspora votes. Six elective positions were up for grabs,
as opposed to the earlier three posts.33 ere were 1,881 elective posts to be
lled through the polls at both the national and county levels of government,
from the presidency to membership of the County Assembly.34 e elections
32 Judiciary Transformaon Framework (2012-2016) p 10. For more informaon on the background and raonale
to the Judiciary Transformaon Framework see, 7-12 copy available at hp://www.judiciary.go.ke/portal/portal/
assets/downloads/reports/Judiciary’s%20Tranformaon%20Framework-fv.pdf.
33 In addion to the presidenal, parliamentary and civic candidates earlier voted for, voters now also had the
Senate representave, woman representave from the 47 counes and the gubernatorial posions to ll in.
34 This number excludes the nominated and special seats in the Houses. There were 290 elected Members of
Naonal Assembly, each represenng single member constuencies, 1,450 County Assembly Ward Representaves
represenng the number of wards (the number would dier per county depending on the number of wards and the
nominees needed to ensure adherence to two thirds gender rule gender.
26
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
presented great prospects35 as well as potential risks, and a sense of foreboding
considering the country’s history.
e above factors all directly or indirectly necessitated the birth of the JWCEP
within the Judiciary. To successfully put in place and run an eective electoral
dispute management, the Judiciary had to work outwards beginning with
itself. It had to be ‘t for the purpose’. e much needed architecture was now
in place. ere was also renewed hope and the Judiciary’s vision codied in a
judicial transformation framework. e Judiciary had to devise a mechanism
that would ensure the imminent dispute resolution process in the aermath
of the 2013 General elections met constitutional and legal muster; a strategy
that resonated with the aspirations of the mwananchi and squarely aligned
with the judicial transformation framework and basically, a mechanism that
restored faith and condence in a previously ‘condemned’ institution. In
the words of the JTF, the Judiciary had to, “reengineer and reposition itself
with philosophical clarity, jurisprudential authority, managerial competence
and unquestionable integrity.36 e manner in which the Judiciary handled
electoral disputes emanating from the rst elections under the Constitution
presented a litmus test as to whether the transformation was real or in name
on ly.
2.0 Judiciary Working Commiee
2.1 Establishment
e establishment of the JWCEP (the Committee) by the Chief Justice,
Dr Willy Mutunga on 10 May 2012 was opportune. With less than a year to go
before the rst elections slated for 4 March 2013,37 the Committee had little
time to waste. It had to quickly set its house in order, prep itself to prepare
balance, see Arcle 177 of the Constuon on membership to county assembly); furthermore, each county assembly
has a speaker elected from persons who are non-members of the county assembly(Art 178 of the Constuon).
Moreover, each of the 47 counes was to elect a governor at the general elecon, a woman representave to the
Naonal Assembly as well as a senator to the Senate.
35 FIDA, ‘Key Gains and Challenges, A Gender Audit of Kenya’s 2013 Elecon Process’ (2013) ,4.
36 Above, n32, 9.
37 The High Court in J ohn Harun Mwau & 3 other s v Attorney Gener al & 2 others [2012] eKLR had determined that
the date of the rst elecons under the Constuon would take place, “within sixty days from the date on which
the Naonal Coalion is dissolved…in accordance with secon 6(b) of the Naonal Accord and Reconciliaon Act,
2008; or (b) Upon the expiry of the term of the 10th Parliament on the 5th Anniversary of the day it rst sat which
is designated by Legal Noce No. 1 of 2008 as 15th January 2008. The term therefore expires on 14th January 2013.
The elecons shall be held within sixty days of 15th January 2013”. The court of Appeal (Center for Right s Education
and Awarenes s & 2 others v John Harun Mw au & 6 others [2012] eKLR) upheld the elecon date of 4 March 2014
subsequently set by the Independent Electoral and Boundaries Commission.
27
Balancing the Scales of Electoral Justice
judges, magistrates and other relevant ocers in time for the historic elections
barely months away. According to initial projections, the Judiciary anticipated
about 500 election petitions.38
2.2 Composion
e JWCEP comprised eight judges and magistrates drawn from the Supreme
Court, Court of Appeal, High Court and Magistrates Courts. e members
of the Committee were Supreme Court judges, Justice Mr Mohammed
Ibrahim and Justice (Prof) Smokin Wanjala, Justice Mr David Maraga and
Justice Mr Paul Kihara Kariuki of the Court of Appeal, Justice Hellen Omondi
and Justice Mr David Majanja of the High Court. e magistracy was also
represented by Hon Roselyn Oganyo, then Senior Principal Magistrate and
Hon Lillian Arika, Principal Magistrate. e Committee also incorporated
Justice Mbogholi Msagha, the then Principal Judge of the High Court. e
composition ensured cross-representation of the various courts in the judicial
hierarchy.
e Committees work was supported by a secretariat drawn from young
professionals who assisted the Committee in its legal research and
administrative work. e technical experts were supported by development
partners,39 while the Judiciary also seconded a few of its sta to the Secretariat.40
A Chief Executive Ocer drawn from the Committee’s membership headed
the Secretariat.
Being an in-house Judiciary Committee, there was no challenge in securing
oce space and furniture at the Judiciary,41 from where the Secretariat would
operate from and the Committee sittings held. is arrangement not only
saved on costs of securing oce space but also saved on time that would
otherwise be expended on procuring an oce space.
38 However, as it turned out, only 188 peons were led (24 cases led against the elecon of Governors, 13
against Senators, 70 against Members of the Naonal Assembly, 9 against County Women Representaves, 67
against County Assembly Representaves and ve against County Assembly Speakers).
39 In parcular, the Internaonal Development Law Organizaon (IDLO), Danish Internaonal Development Agency
(DANIDA) and the United States Agency for Internaonal Development (USAID).
40 About 17 technical experts comprising legal researchers, research interns, administraon interns and
consultants undertaking short term assignments. Sta from the judiciary aached to the Secretariat included the
head of secretariat, clerical/ logiscs/nance ocer, events coordinator, administraon/ operaons ocer and
oce manager. For a breakdown of the stang levels, see Judiciary Working Commiee on Elecon Preparaons,
‘Evaluaon of the performance of the Judiciary and the Judiciary Working Commiee on Elecon Preparaons in
managing the electoral dispute resoluon process’ (May 2014) p 31.
41 The JWCEP oces were located in one of the rooms on the rst oor of Milimani Law Courts, Nairobi.
28
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
2.3 Mandate of the JWCEP
e overall purpose of the Committee was “the strengthening and improvement
of the Judiciary’s capacity to resolve election petitions in a ‘people-focused and
expeditious justice’ manner”. Its mission was to, “design and execute a Judiciary
programme to build the capacity of judicial ocers and sta on electoral matters,
and suggest ways of working with other stakeholders.42
So as to realise the above overarching goal, the Committee was tasked
with ve specic activities: (1) to advise the Judiciary on administrative
arrangements and measures for the ecient disposal of election related
disputes; (2) to develop and implement, in conjunction with the Judiciary
Training Institute (JTI), a training programme for the ecient and eective
management of election disputes for judicial ocers and support sta; (3) to
develop and design a system for monitoring and evaluating the management
and administration of election-related disputes in court, (4) to liaise and
coordinate with stakeholders to ensure ecient, eective and timely resolution
of election related disputes and oences; and (5) to advise the Judiciary on the
information that needed to be developed and disseminated to the public on
the avenues open to it to pursue electoral disputes and the approaches that
will be employed.
In executing its mandate, JWCEP developed a four-pronged strategy as
discussed below:
2.3.1 Development of Legal and Administrave Framework
e rst task was to devise legal, regulatory and administrative arrangements
necessary for eective and ecient resolution of electoral disputes. As advised
by the IREC and CIPEV, revision of the legal framework was crucial to the
success of the electoral dispute resolution process. It was imperative for the
Committee to scrutinize and assess the legal gaps and advise on ways to
sealing these gaps for eective resolution of electoral disputes.
According to the Fih Schedule of the Constitution, election-related laws
were to be enacted within a year from the eective date. us, by the time
42 See hp://www.judiciary.go.ke/portal/blog/post/history---the-judiciary-working-commiee-on-elecon-
preparaons at 12 December 2015.
43 This included legislaon on elecons under Arcle 82, electoral disputes under Arcle 87, legislaon on
Independent Electoral and Boundaries Commission under Arcle 88 and legislaon on polical pares under Arcle
92.
29
Balancing the Scales of Electoral Justice
of birth of the Committee, the relevant legislative framework was already in
place.44 However, the existing legal framework was inadequate and needed
to be supplemented by rules and regulations to aid its operationalization.
e JWCEP facilitated the enactment of vital amendments to Elections Act,
2011,45 development of Elections (Parliamentary and County Elections)
Petition Rules 201346 to replace the National Assembly and Presidential
Election Petition Rules, 199347 and development of the Supreme Court
(Presidential Election Petition) Rules.48
e Rules were draed with the assistance of legislative draers, following
several stakeholder forums, drawing participation from legal practitioners,
civil society organizations, the Independent Electoral and Boundaries
Commission (IEBC), academia and judicial sta.
e amendments proposed to the Elections Act, 2011 by the Committee
gave jurisdiction to the Magistrates Courts to entertain electoral disputes
arising from county assembly petitions, thus expanding the capacity of the
Judiciary to dispose of election petitions timeously. e petition rules were
made known to the judicial ocers and the lawyers through trainings and
stakeholder engagements. e said rules eschewed technicalities in favour of
substantive justice and prescribed the time limits for specic stages of the
petitions and this in turn inculcated a sense of responsibility and discipline on
the part of advocates to focus on merits. is yielded predictability and ow
of proceedings.
e Committees achievements on this aspect of its mandate was impressive,
bearing in mind that it was hard pressed for time. e already tight schedules
before the March 2013 elections were further complicated by the fact that
the term of the National Assembly was to expire in January 2013.49 If the
Committee was to successfully table legislative recommendations, it had to
do so way before then.
44 The Elecons Act, 2011(No 24 of 2011) which commenced operaon on 2 December 2011, the Electoral and
Boundaries Commission Act, 2011 (No. 9 of 2011) and the Polical Pares Act, 2011 (No. 11 of 2011).
45 These were adopted vide Statute Law Miscellaneous Amendment Act, No. 47 of 2012.
46 Published in the Kenya Gazee on 15 March 2013 vide Legal Noce No 54 of 2013.
47 Legal Noce 14 of 1993.
48 Legal Noce 15 of 2013.
49 While the Constuon did not provide for dissoluon of Parliament, the expiry of the term of the 10th Parliament
was to be on the 5th Anniversary of the day it rst sat which was designated by Legal Noce No. 1 of 2008 as 15
January 2008 (See John Haru n Mwau & 3 others V Attorney G eneral & 2 others [2012] eKLR).
30
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
On the administrative aspect, the JWCEP recommended and facilitated
the gazettement of an ad hoc bench comprising 99 judges and magistrates
to constitute the election court that would hear petitions led to challenge
various Parliamentary and County positions. ese would hear cases on a
daily basis. e election petition rules required that, as far as possible, election
petitions be heard on a daily basis, with minimal adjournments, to ensure
expeditious disposal.50 is was not going to be easy given the lean number
of judges and judicial ocers. A total of 38 judges (from a total of then 53)
and 61 magistrates handled the petitions, constituting over 60 per cent of all
the judicial ocers in the country.51 is meant that the redeployment of
judicial ocers came at a heavy cost for other cases. e arrangement saw
the reorganisation of cause lists and the stalling of cases in certain courts as
priority was given to election petitions. Exclusive focus on election petitions
by the ad hoc bench was intended to avoid distractions created by routine court
work and enable them concentrate on election petitions. e move would also
serve to liberate the ad hoc bench from the challenges that ‘familiarity’ with
their routine stations might bring. e administrative rules requiring judges
to be transferred to dierent locations to hear election petitions responded to
the local sensitivity of the petitions.52 e ad hoc bench was not bound to hear
other matters apart from election petitions.53
e administrative move of temporarily moving some members of the ad hoc
bench to far-ung stations for such length of time, however brought with it
both logistical and nancial repercussions - the transferred bench together
with the sta (secretaries, clerks, drivers and legal researchers) would require
accommodation and living allowances for the period, something that the
Committee advised the Judiciary’s administration to consider. Facilities for
the storage and recount and scrutiny of ballots by Deputy Registrars had
also to be factored in. Owing to nancial and capacity constraints, it became
apparent that it was not feasible to transfer all selected judges and magistrates
to other stations except in stations where there was a large number of petitions.
Furthermore, to prepare all the court stations for the increased workload that
would be occasioned by the petitions, all aected court stations were required
50 Rule 22, Parliamentary and County Elecon Peon Rules.
51 See JWCEP, ‘Evaluaon of the performance of the Judiciary and the Judiciary Working Commiee on Elecon
Preparaons in managing the electoral dispute resoluon process’ (May 2014) p 43(hereaer “Evaluaon report”).
52 As above.
53 Despite this leeway, some judicial ocers were able to sll handle the other cases parallel to the electoral
dispute resoluon process.
31
Balancing the Scales of Electoral Justice
to rationalise their diaries to accommodate the EDR process. ere were other
sacrices too; the Chief Justice cancelled annual leave for all judicial ocers
for the period between March and October 2013 to allow for an accelerated
uninterrupted process.54
In spite of its well-meaning intentions, prioritisation of election petitions
elicited mixed reactions. For some, the move was discriminatory and favoured
the rich, (the perception that those who vie are the wealthy politicians and
by prioritising election petitions, the Judiciary was eectively discriminating
against the poor who had other ongoing cases and the remandees who
continued to wallow in the cells). Others saw it as a necessary measure given
the constrained number of judicial ocers vis-à-vis the strict constitutional
timelines. e Judiciary tried to mitigate this situation through rolling out
of a rapid case management for criminal cases through a Judicial Service
Week aer the closure of the EDR process and by explaining to the public the
rationale behind the ‘prioritisation’ of resolution of electoral disputes. During
the Service Week, carried out in October 2014, select High Court judges were
assigned to hear and determine pending criminal cases for a two-week period
in order to reduce backlog.
e Committee made other administrative recommendations. In addition
to pre-trial conferencing which had been introduced by the election petition
rules to assist in case management,55 the Committee draed a pre-trial
checklist which compiled into one document all the documents the parties
were required to le and their respective timelines. e checklist simplied
the ling process and made it easier for the court sta to ensure that the
timelines were observed.
Further, the Committee had anticipated the use of a case management system
(CMS) to monitor the progress of the petitions across the country. e CMS
was developed in collaboration with the ICT Directorate in the Judiciary.
ICT ocers were expected to scan and upload all the documents led by the
parties to ensure that cases would not be delayed if physical copies of the
les could not be traced. e CMS was advantageous because it could hold
large volumes of scanned documents. All progress in the cases was also to be
54 See Memo from the Chief Jusce to all court sta, 16 January 2013; Appendix 1, Judiciary Pre-Elecon Report,
(September 2012-February 2013), 22. The report is available on, hp://www.judiciary.go.ke/portal/assets/les/
Reports/Judiciary%20Pre-Elecon%20Report%2027th%20feb.pdf, at 9 January, 2016.
55 Rule 9 of the Presidenal Elecon Peon Rules; Rule 17 of the Parliamentary and County Peon Rules.
32
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
updated so that the Committee could, at the touch of a button, nd out the
progress of any case in any court station in the country. It had been anticipated
that the information generated by the system would assist the Committee to
identify any delays in the EDR process and provide the necessary support for
a smooth EDR process. Forty-ve ICT ocers were trained on the CMS and
dispatched to various stations where election petitions were being heard.
However, the CMS did not function as anticipated. Firstly, the system was
staed by ICT ocers who did not have a legal background. is made it
dicult for them to productively run the process. Secondly, judicial ocers
were not trained on the use of the CMS, and therefore could not employ it
to manage their cases. irdly, the ICT ocers were not integrated into the
EDR process; the administrative structure was such that the ocers reported
to the ICT head oce in Nairobi, rather than the Committee. Furthermore,
the Committees access to the information was limited as it was channelled to
the ICT department. e lesson learnt from these shortcomings is the need
to integrate the ICT sta to support judicial sta in future use of the CMS.
Nonetheless, the CMS is not a wasted investment as it can be harnessed for
future EDR processes.
Following the failure of the CMS, the Committee developed an alternative
reporting tool whereby Deputy Registrars and Executive Ocers sent data on
the status of cases to the Committee daily. e legal researchers attached to
the electoral court stations also played a key role in providing prompt updates
on case progress and by sharing through email (both to the Committee and
among themselves), so copies of delivered decisions in real time, upon
approval by their respective Judges. e members of the Secretariat were
assigned court stations to monitor the progress of cases and collect rulings
and judgments. is information was then collated, a synopsis prepared
and sent out to the media, through the Directorate of Public Aairs and
Communication (DPAC), for dissemination to the public at the end of each
week.56 To promote consistency in decision-making, the Committee would
also share the rulings and judgments with the judges, magistrates and legal
researchers handling petitions through email. Moreover, the secretariat
worked closely with the National Council for Law Reporting and legal
researchers in the eld to ensure the timely receipt and dissemination of
56 One of the summaries of elecon cases prepared by the Commiee is available on, kenyalaw.org/kenyalawblog/
synopsis-of-select-elecon-related-cases-20122013/, accessed 14 December 2015.
33
Balancing the Scales of Electoral Justice
electoral decisions.57 e timely dissemination of decisions to the public and
the press limited the opportunity for misreporting.
2.3.2 Training
is being the rst time that the electoral regime under the current
Constitution was being tested through dispute resolution, it was important
for the Select Bench (the judges and magistrates appointed to handle electoral
disputes) to be well prepared for the arduous task.58 is is regardless of their
previous experience in past electoral cycles. e training would give judicial
ocers and sta an opportunity to familiarize themselves with the applicable
laws, as well as orient them to the rigors of the electoral dispute resolution
process.
e Kriegler Commission had expressed concern over the limited training
undertaken by judicial ocers during their tenure and the eect this had on
eective dispute resolution:
Many commonwealth countries, such as Kenya, adhere to the quaint con
that judges are generalists who can grasp any maer, however esoteric,
provided it is competently argued. In the case of electoral disputes, this
atude needs to be re-examined. The principles and pracce have
developed exponenally over the last two decades and a substanal body
of internaonal learning has been produced. All of this bears on dispute
resoluon and ideally requires specialized judicial aenon. Because
electoral disputes usually demand rapid resoluon, and do not allow me
for extensive legal research by the adjudicang tribunal, familiarity with
electoral law and pracce is therefore a highly desirable aribute of such
a tribunal.59
In order to eectively discharge this mandate, the JWCEP, in conjunction
with Judiciary Training Institute (a body within the Judiciary charged with
professional development of judicial ocers and sta) developed a training
programme for judges, judicial ocers and sta. e methodology adopted
by JWCEP was to engage training consultants who developed a training
57 This is through the updates on the Kenya Law website (www.kenyalaw.org) and through the Kenya Law email
alert system comprising several thousand subscribers.
58 The Judiciary Working Commiee on Elecon Preparaons, Post-Elecon Report (March-September 2013),
p19 (“Post-elecon report”). The report is available on, hp://www.judiciary.go.ke/portal/assets/les/JWCEP%20
UPDATES/REPORT%20-Judiciary%20Working%20Committee%20on%20Election%20Preparations%20Post%20
-Elecon%20Report%202013%20March%20-%20September.pdf, available at 9 January, 2016.
59 Above, n10, 141-142.
34
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
curriculum. In order to cover as many targets within minimal time and to
increase the long-term training capacity of the Judiciary, a pool of ‘experts’,
trainers of trainers (TOTs) were trained to disseminate the curriculum through
training of all magistrates and legal researchers and select court sta. Using
the TOTs methodology, 35 judges and magistrates were trained on the content
as well as relevant dissemination techniques including training methodology,
current practices in eective training, various training techniques such
as role-play, brainstorming and group work as well as adult learning
techniques.60 ese trainers were thereaer deployed to train magistrates and
legal researchers on EDR. For ecacy and proper management of resources,
the trainings were carried out in ve regions around the country with the
participants being trained in the regions closest to their stations.
To learn from practical experiences from countries with similar electoral
legislation, the Committee invited judges from Uganda and consultants
from the Philippines, whose experiences in EDR enriched the training and
discussions with judicial ocers. Uganda in particular was selected for
benchmarking because their electoral legislation also required that electoral
disputes be heard and determined within 6 months, both at the High Court61
and at the Court of Appeal.62 e perspectives of the Ugandan judges
from both the High Court and the Court of Appeal provided guidance in
case management, which was crucial to ensuring compliance with the
constitutional timelines.
Training of the judicial ocers and sta led to the uniform management
of election petitions and hence increased the perception of fairness and
impartiality by the Judiciary. e fact that the Judiciary was undertaking
preparation through training of its sta, by itself, instilled public condence
in its capacity and ability to handle electoral disputes.
e trainings were crucial to not only enlighten judicial ocers and sta on
the new electoral regime, but also provided useful forums for sharing ideas
on how the EDR process can be smoothly facilitated. Under the aegis of the
DPAC, judicial ocers were also trained on how to engage with the public
and the media throughout the EDR process. is was considered necessary
because the wider public, and not just the parties to the litigation, is oen
60 The Judiciary Working Commiee on Elecon Preparaons Pre-Elecon Report 22.
61 Secon 63(9) of the Parliamentary Elecons Act, 2005(No 17 0f 2005).
62 As above, s 66(2).
35
Balancing the Scales of Electoral Justice
interested in the outcome of an electoral dispute. Public engagement and
media relations were therefore found to be worthy components of the training
curriculum.
In acknowledging the fact that judicial ocers could not eectively dispose
of electoral disputes without eective administrative support, the Committee
also trained Court of Appeal sta, Deputy Registrars and Executive Ocers.
Executive Ocers and Deputy Registrars are particularly crucial to the EDR
process because they are tasked with carrying out scrutiny, tallying and
recount of votes and ballots, under the court’s supervision, where the results of
an election are impugned. ey are therefore responsible for receiving ballot
material, conducting scrutiny and recount and thereaer preparing a report
that assists the court to reach a determination as to the validity of the election.
e training of Court of Appeal sta was necessary to ensure that the overall
objective of timeous electoral dispute resolution would not be subject to
bottlenecks in the appellate courts.
2.3.3 Monitoring and Evaluaon of EDR Process
e third mandate of the Committee was important for various reasons. Firstly,
previous experience had shown that there was no follow up on the progress
of election petitions from the time they were led to the time judgement was
delivered. Secondly, the judges who handled election petitions had no forum
to share experiences and request assistance to address any challenges faced
when handling election petitions. is was of concern since very few judges
had handled election matters either in practice or during their career on the
bench.63 irdly, due to the high stakes nature of elections, litigants oen
employ every delay tactic at their disposal to prevent the case from being
heard to conclusion, or at least being heard expeditiously.64 For this reason,
some cases outlived the tenure of the oce whose election was impugned.65
Fourthly, being a hotly contested and publicised aair, the security of judicial
ocers hearing petitions was also at stake. In 2013 for instance, there were ve
attacks on High Court judges and a threatening letter sent to the Chief Justice.
63 Above, n60, 29.
64 See for example Ibra him Ahmed v Simo n Mbugua & 2 Oth ers Nairobi High Court Elecon Peon 41 of 2008
which was handled by 3 judges before it was nally concluded. Some of the reasons for the delay included threats
made to the presiding judge and a request for recusal of another on grounds of lack of credibility.
65 See Alice Wahome v James Maina Kamau & 2 Others Elecon Peon 3 of 2008 relang to the 2007 elecons in
Kandara constuency which had not been concluded by the 2013 elecons.
36
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
ough these were a cause for concern, the Chief Justice quickly allayed the
public’s fears of lack of independence during the EDR process and heightened
security for judicial ocers selected to hear election petitions.66
e above status of aairs called for constant support for judges and judicial
ocers during the EDR process. As part of delivering on this mandate, the
Committee organised debrief sessions aer the petitions, conducted an
evaluation at the end of the process and kept in touch with members of the
bench through its Secretariat to provide any support required during hearing
of petitions.
2.3.4 Stakeholder Engagement
Stakeholder engagement is one of the three Key Result Areas (KRAs)
under the rst pillar of the JTF on people-focused delivery of justice.67
Engagement with stakeholders and the wider public was, consequently, seen
as a core component in the judicial transformation programme. e JTF
recognized that for the Judiciary to achieve its ultimate objective of access
to and expeditious delivery of justice to all, it could not successfully do so in
splendid isolation. e other actors in the justice chain had to perform their
corresponding and complementary roles, for the responsibility to maintain
a just society was not the sole responsibility of the Judiciary.68 us, even
though the Judiciary comes in at the tail end of the EDR process, it cannot
play its role eectively if other actors are not facilitated to play their role.69
For example, if the IEBC and the Political Parties Disputes Tribunal are not
strengthened, disputes that ought to be resolved at these fora spill over to the
Judiciary, putting a strain on judicial resources and time and further aecting
other judicial activities.
Stakeholder engagement was also symbiotic. ere was, for instance, limited
capacity for the Committee to exhaustively and eciently carry out its terms
of reference single-handedly without the support of stakeholders, given
its limited nancial and even time resources. It was therefore vital, for the
Committee to seek out and tap into partners with the necessary resources
66 Press release by the Chief Jusce, 20 February 2013 available on, reporngkenya.net/#arcle/2592, accessed
13 December 2015.
67 The other two KRAs under the rst pillar are Access to and expedious delivery of jusce and People-
Centeredness and Public Engagement (See JTF, above n32, 13-20).
68 See Key Result Area No. 3 of JTF, above n32.
69 The Judiciary Working Commiee on Elecon Preparaons, Laying the Ground for Electoral Jusce: Interim
Report of the Judiciary Working Commiee on Elecon Preparaons (Quarterly Report) (2012) 7.
37
Balancing the Scales of Electoral Justice
to complement those of the Committee. e JWCEP thus placed a heavy
premium on liaising and coordinating with stakeholders to ensure ecient,
eective and timely resolution of election-related disputes. e Committee
provided a platform for stakeholders to engage, in a ‘less formal/tense’
atmosphere, with the Judiciary. is was an improvement to the past where
stakeholders “would only engage with the Judiciary through the Chief Justice’s
oce, which sometimes was not responsive”.70
JWCEP had to ensure the participation of the widest possible range of
stakeholders to ensure buy-in on the outcomes of its work including laws,
regulations and administrative arrangements. is was key to a successful
process. ose consulted in the process included judicial ocers and sta,
the National Council on the Administration of Justice (NCAJ), the National
Council for Law Reporting (NCLR), the IEBC, the Registrar of Political
Parties, the Law Society of Kenya, the Director of Public Prosecutions, Oce
of the Attorney General, Kenya Law Reform Commission, various local and
international civil society organizations, regional election observer groups
and political parties.71
Moreover, in order to improve public understanding of the EDR process, the
Committee deliberately engaged stakeholders in the process of preparing
amendments to electoral law and the rules governing the conduct of election
petitions. e Evaluation Report on JWCEP, observed that:
Due to the wide consultaons facilitated by JWCEP, most of the stakeholders
interviewed observed that the amendments and the peons rules were
one of the key factors that led to the successful disposal of elecon peons
within the me set. The consultave process enabled the stakeholders
understand the rules and apply them during the peons.72
e modalities of stakeholder engagement initially appeared daunting, given
that the Judiciary is required to always appear non-partisan. What length
and how deep could the Committee acceptably go into the engagements
without compromising on its perceived independence? e Committee,
composed of purely judges and magistrates, was thus wary of its limitations in
70 Above, 28.
71 For a more extensive discussion of the role played by each stakeholder that the Commiee worked closely with,
see chapter 3 of the Judiciary Post-Elecon Report (n 58 above).
72 The two experts hired by the JWCEP to evaluate its work were Dr Monica Kerrets-Makau and Mr Tom Mogeni.
See Evaluaon report, n 51 above, 28.
38
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
its stakeholder and public engagement roles and grappled with the question
of how to actively engage with stakeholders without losing the perception
of non-partisanship, a sine quo non to public condence building in the
Judiciary. To resolve this quandary, the Committee actively engaged with
various stakeholders, public bodies and independent commissions in the pre-
election period. However, in the period immediately preceding the elections
and aer, the Committee gradually retreated from stakeholder engagement
to preserve its independence as the election court began to take up its
constitutional mandate.73 Furthermore, the Judiciary was sensitive to existing
mistrust between political parties. As such, it engaged with the public and
stakeholders in forums open to all at which it emphasised its independence
and preparedness to execute its electoral dispute resolution role. It was also
expected that in the daily course of their respective business, the stakeholders
would, by their own initiative inltrate and push the Committee’s agenda.
rough these engagements, JWCEP gained for the judicial institution the
much needed and timely core values of transparency and responsiveness,
which increased public condence generally on the preparedness of the
Judiciary to handle petitions.
In addition to their participation in validation of electoral rules, stakeholders
were also an integral part of the training component of the Committee’s
mandate. Not only did various stakeholders provide nancial support for
various training sessions, but they provided resource persons and participated
in the training sessions as well.74
Even before the training sessions were conducted, stakeholders were invited
to and graciously participated in the preparation and validation of the
training manuals and other material that was used at the training sessions.
Participants also received publications on electoral law to serve as reference
material during the EDR process.
As indicated previously, the CMS was also developed in collaboration with
stakeholders. One of the development partners75, donated modems and
laptops to facilitate the data capture and transmission process.76
73 Judiciary Post-Elecon Report, n 58 above, 31.
74 Chapter 2 of the Post-Elecon Report elaborates on the training support given by each stakeholder to the JWCEP
training programme.
75 The German Development Agency (GIZ).
76 Post-Elecon Report, above n 58, 20.
39
Balancing the Scales of Electoral Justice
In general, the linkage between the Committee and the relevant stakeholders
was a major factor that signicantly contributed towards the implementation
of the Committee’s activities and successful achievement of its objectives.
2.3.5 Public Engagement
e h mandate of the Committee was to advise the Judiciary on the
information that needed to be developed and disseminated to the public
regarding the avenues open to it to pursue electoral disputes as well as the
approaches that will be employed.
Public participation is one of the national values and principles recognised
under Article 10 of the Constitution. e principle also accords with
the sovereignty of the people enshrined in Article 1 of the Constitution
and Article 159 makes it clear that judicial authority is derived from the
people. Public participation is rendered illusory where the public lacks the
requisite information to facilitate eective participation. Furthermore, public
engagement is a core result area under the JTF transformation pillars. All
this meant that the public remained an indispensable constituency in the
Committees work.
Engagement with the public was mainly done through the media and various
public fora. In an unprecedented departure from the past, the Chief Justice,
judges and magistrates appeared on televisions and radio shows across the
country to assure the public of the preparedness of the Judiciary to handle
election petitions in the run-up to the elections.
Moreover, having realized the importance of getting accurate information
disseminated to the public timeously throughout the EDR process, the
Committee hosted news editors to a bre akfast meeting to raise public awareness
on the preparation activities of the Committee in October 2012. is was
intended to increase public condence in the working of the Judiciary and its
preparedness to diligently discharge its constitutional mandate in relation to
electoral disputes. e forum also provided a platform to discuss responsible
reporting during elections.
In November 2012, the Committee took part in a media roundtable conference
hosted by ICJ-Kenya and Inter-News Agency to provide a platform to news
agencies that run regional and vernacular radio stations to engage with
40
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
the Judiciary on its state of preparedness for the elections.77 e media
remained a very useful ally in public engagement, especially given the limited
opportunities that judicial ocers have to regularly engage with the public on
their work. In addition to media houses being facilitated to cover proceedings
in the courts during the hearing of the cases, JWCEP facilitated weekly
updates to media houses, through the DPAC, on the number of cases led
according to the electoral seat that they related to, those dismissed or heard to
completion and the number pending determination until the last dispute was
resolved. ese updates were also posted on the Judiciary’s website.78
Since neither the Constitution nor the electoral rules limit locus standi for
election petitions, the Committee sought to avail information on EDR to
everyone in a language that was easily understood. e Committee therefore
prepared and published, through the Oce of the Chief Registrar, a fact sheet
on frequently asked questions concerning electoral dispute resolution. e
pamphlet simplied electoral law and the procedures for EDR to empower
ordinary citizens to le claims or otherwise engage with the procedures as
and when an electoral dispute arose. ese questions were also published in
two national newspapers just before the elections to ensure wide circulation.
Public condence was increased following dissemination to the public of the
information concerning various stages of the Judiciary’s preparedness, as well
as the proactive eorts made by the Judiciary to imprint a positive image, one
dierent from that of the year 2007/2008. e fact that information from the
Judiciary was made accessible to lawyers and litigants was sucient evidence
that Committee delivered on its mandate of advising the Judiciary on the
information that needed to be developed and disseminated to the public.
3.0 Challenges and Lessons
e evaluation process provided the Committee with an opportunity to
review its work and adopt areas for improvement of future EDR processes.
Due to the crucial role played by the Committee, the Chief Justice established
the Judiciary Committee on Elections (JCE) in August 2015, as successor
to JWCEP to continue the important work of ensuring that the Judiciary
is prepared to meet the challenges of delivering a robust, fair and ecient
77 Pre-Elecon report (above n 60) 44.
78 For samples of the synopses, see The Judiciar y State of the Judicia ry and the Administr ation of Justice Annu al
Report (2012-2013) 43-44.
41
Balancing the Scales of Electoral Justice
electoral dispute resolution program in subsequent elections. is Section
identies some of the challenges the JCE will have to overcome in preparing
the Judiciary for future EDR processes. It highlights the mechanisms put in
place by the Committee, which are already sustainable, and proposes ways in
which other loopholes identied can be sealed to ensure eective EDR.
First, the proposed amendments to the Elections Act, 2011, the Election
Petition Rules and administrative arrangements put in place are long term
in their nature and are sustainable over the long term. However, there is need
to revise the laws and rules to address several of the challenges witnessed
in 2013 and for which the Committee based on stakeholder inputs has
already developed proposals. Some of the areas covered include that even
though the 2011 Elections Act and Election Petition Rules provide for county
election petitions, the Constitution does not expressly provide for county
election petitions in the same manner as parliamentary and presidential
election petitions.79 Other issues that arose during this cycle that will require
clarication by way of amendment of the Elections Act and the attendant
rules are the issue of interlocutory appeals (whether a party could appeal
piece-meal on a preliminary rulings) and the question of stay pending appeal
where an election had been nullied and the dissatised party subsequently
exercises the right of appeal. e election court suggested that it would be
more helpful to concretize this issue in to law.80
Additionally, Section 96 of the Elections Act, which gives the Rules Committee
the power to make rules of practice and procedure does not expressly bestow
power to make rules regarding proceedings in the Magistrates’ Courts. is
ought to be addressed to avoid legal challenges as to the validity of the election
petition rules in relation to petitions in the Magistrates’ Courts.81
To nance the work of the Committee, JWCEP had budgeted for Kshs 600
million (or US$6 million), as illustrated by Annex I at the end of this chapter.
However, the Committee was not fully funded because by the time it was
established, the proposed budget could not be factored into the Judiciary
budget. To bridge the decit, the Committee had to rely on the nancial
79 Arts 105 & 140.
80 In Ferdinand Ndung’u Waititu v In dependent Electora l & Boundaries Commi ssion, Court of Appeal Applicaon
No. 137 of 2013, the Court of Appeal ruled that: “Under rule 35 of the Elecons Peon Rules, no appeal lies to this
Court from an interlocutory order, ruling or direcon by an Elecon Court ”.
81 E Ongoya,’The Legal Framework on Resoluon of Elecon Disputes in Kenya’ in GM Musil a (ed) Handbook o n
Election D isputes in Kenya (2013) 96 147.
42
Resolving Disputes from the 2013 Elecons in Kenya and the Emerging Jurisprudence
assistance of development partners and civil society organizations. However,
even with the intervention of these stakeholders, use of the government
nancial management system hampered the speedy release of funds to the
Committee, which hampered the Committee’s planning and activities. In
order to circumvent the delay in disbursement of funds to the Committee,
permission was granted for the Committee to open a bank account for ease
of transactions. is however did not solve the liquidity problem as no funds
were released during the lifetime of the Committee.
e JCE will have to look into ways of directly accessing money for its activities
in the future to avoid delays in achieving its mandate.
e challenges with the CMS have been addressed earlier in this paper. e
need to invest in a case management system cannot be overemphasized. e
coordination of such a programme needs to be supported by appropriate
technology particularly where it is expected that the future elections will be
more competitive hence give rise to more disputes.
e appellate jurisdiction in election petitions is also an area where work
is still required. Article 105 of the Constitution, which grants the High
Court jurisdiction to determine election petitions in respect of Members of
Parliament does not provide for a right of appeal to the appellate court. e
right of appeal was introduced by the amendments spearheaded by JWCEP
at section 85A of the Elections Act, 2011. e Act did not provide for further
appeals to the Supreme Court. It was thus not contemplated that there would
be further appeals to the Supreme Court. However, in several cases,82 the
Supreme Court asserted jurisdiction to hear appeals from the Court of Appeal
in election petitions. e assumption of jurisdiction by the Supreme Court
in ordinary election petition caused uncertainty in the time taken to deal
with election petitions, as the law does not provide a time limit within which
such petitions must be disposed. e lack of express provision on the period
for resolution of such appeals by the apex court eectively tends to defeat
the essence and the mischief that sought to be cured by the framers of the
Constitution in imposing specic timelines in EDR for the courts below.
At the time of conclusion of this Chapter, some election petitions were still
82 Hon. Lemanken Aramat v Harun Meitamei Lempaka, SC Peon No. 5 of 2014, Gatirau Peter Mu nya v
Dickson Mwenda Kithinji & 2 Others, S.C. Peon No. 2B of 2014 [2014] eKLR and A nami Silver se Lisamula v Th e
Independ ent Electoral and Bou ndaries Commissio n and Two Others, Sup. Ct. Peon No. 9 of 2014.
43
Balancing the Scales of Electoral Justice
pending at the Supreme Court, less than two years to the 2017 General
elections.
In relation to disputes arising out of the delimitation of electoral units under
Article 89 of the Constitution, there is also need for administrative rules
providing for timelines for appeals from the decision of the High Court
under Article 89 (10). Article 89 envisages resolution of such disputes within
three months; however, in the last electoral cycle, the decision of the Court of
Appeal setting aside the decision of the High Court to rename two electoral
areas83 was delivered ten months aer the decision of the High Court and
aer the conduct of the elections to which those electoral units related. is
cannot have been the situation envisaged by the draers of the Constitution.84
It does not accord with the mandate of timely resolution of election-related
disputes.
As discussed earlier in the paper, during the six-month period when petitions
were being heard, it became apparent, particularly in the High Court that
the resolution of other cases suered because of concentration of resources
towards the hearing and nalization of election petitions. In order to deal
with this, the Judiciary took the step of introducing the concept of a Service
Week, which saw judges assigned to deal with criminal cases. is however,
was a stop-gap measure. In the future, planning must take into account the
nature of the election cycle in order to allocate resources in good time to avoid
diminishing access to justice in other areas during the time election petitions
are being heard.
4.0 Conclusion
e Judiciary set out to transform the public