In 2010 Kenyans gave themselves a new constitution which ushered in a new ways of conducting elections emphasising transparency, accountability and verifiability of election results. This are anchored in Article 81 of the 2010 constitution. Kenya has held elections under the new 2010 elections twice i.e 2013 and 2017. In both 2013 and 2017 the elections were characterised with election malpractice and the results highly contested and ended in the Supreme Court. In 2013 the Supreme Court rendered a decision which was highly criticized on grounds of lack of consideration to the constitutional principles of election. In 2017 the court tried to play fidelity to the constitution by employing the inquisitorial approach and ended up making a decision to annul the presidential election on ground of non compliance ,transparency and verifiability of the election. This paper will delve into the approaches applied in both decisions.
The promulgation of the 2010 Constitution introduced the Supreme Court which has original jurisdiction on presidential election disputes. It is on this basis that the pioneer presidential petition of 2013 was filed.
This paper seeks to find out the contribution of the 2013 judgment to electoral justice in Kenya, that is: did the judgment boost the credibility of the judiciary, an institution which was perceived not independent previously? Did it provide a way out for aggrieved parties to address their electoral grievances instead of instigating demonstrations and ethnic violence to have their voices heard? This paper concludes that implementation of the constitution and electoral justice has taken strides in the right direction albeit slowly. However, the same can only be achieved progressively.
Prior to 2017 General Elections, Parliament amended the Elections Act mandating Independent Electoral and Boundaries Commission (IEBC) to employ technology in conducting elections. In this regard IEBC procured, tested and deployed the Kenya Integrated Electoral Management System (KIEMS) which it used in biometric voter registration, and during Election Day, identification of voters, transmission of election results from polling stations to the Constituency Tallying Centre and the National Tallying Centre. The technology was meant to ensure elections were conducted in a simple, accurate, verifiable, secure, accountable and transparent manner. However the veracity of the system was put to test during transmission of votes when glaring variances were noted in the IEBC’s portal, tallying forms and the result displayed on print media. It’s on this backdrop the Supreme Court nullified the 8th August 2017 presidential elections.
Following the annulment of the initial poll, the IEBC ordered that fresh voting be held on October 26th. The opposition leader, Raila Odinga, announced his withdrawal from the elections citing lack of reforms, he claimed necessary to render the re-run free and fair. The latter was held in a toxic political environment. In 25 constituencies, where many voters felt marginalised and violent clashes occurred, the voting was not held up to date. The incumbent was declared winner, and a Public Interest Litigation petition was filed to challenge the results. The Court examined the petitioners’ allegations against the constitutional standard of “free and fair elections”; it took a perspective of a “right to vote” and state’s positive obligation to secure it. Having placed the entire burden of proof regarding the alleged irregularities on the petitioners, it dismissed the petition. Odinga refused to honour the elections results. But did the Court have any chance to rescue the elections?