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EIGHTH EAST AFRICAN MAGISTRATES’ AND JUDGES’ ASSOCIATION (EAMJA) CONFERENCE

17TH – 22ND MAY 2010 ARUSHA, TANZANIA

ICJ Kenya‘s Expert Opinion Paper on the Jurisprudence Emerging from the 2007 Election Petitions.

Presented by George Kegoro, Executive Director, ICJ Kenya

·  Theme: The Right to Political Participation and Elections in East Africa

·  Sub theme: Adjudication of Electoral Disputes; the role of the Judiciary in resolving electoral disputes.

Masha Baraza[(]

DO NOT COPY, QUOTE OR CITE WITHOUT ICJ KENYA AND THE AUTHORS PERMISSION

Introduction 2

The 2007 General Election: Free and Fair? 3

Post-election opinions on the Judiciary 4

A Brief Synopsis of the 2007 General Elections Petitions 6

Service 6

Strict Interpretation 9

Inordinate Delays 10

Burden of Proof 11

Beyond the Bench 12

Legislative Provisions 12

Incompetent Election Management 13

Lack of manpower 14

Lack of resources 14

Advocates and Litigants 15

Concepts for consideration 17

International standards 17

Judicial Activism 18

Terminology 18

A Brief History 18

Principles and Concepts 20

The Debate in Praxis 23

A Multidimensional Model 26

Concluding Thoughts 28

Thoughts for Change 29

Essential and urgent reform of the Judiciary 29

Election dispute resolution legislation 31

Voter and Civic Education 31

Jurisdiction 32

Timely resolution of electoral disputes 32

Enforcement and prosecution 33

Transparency 34

Introduction

The role of the judiciary within the electoral process is widely recognised as essential and it is perhaps never more acute than when it comes to the consideration of electoral petitions. The right of every eligible citizen to determine who will represent them in government without encumbrance is the basic unit and cornerstone of any democracy and a pre-requisite for social cohesion and solidarity. Elections are indeed an element of within the principle of rule of law; they are “...human rights events: first, because they give voice to the political will of the people involved; and secondly, because, to be truly free and fair...they must be conducted in an atmosphere which is respectful to human rights.”[1] An election petition represents a potential abuse of this basic constitutional right and as the final arbiter of the outcome of the electoral process the Judiciary has a weighty and solemn responsibility. However, as the allegations made by the petitioners betray, an election petition is only one part of a much longer process. To consider the role of the Judiciary in the electoral process one must consider the role of the Judiciary in the wider democratic process as well.

Shako explains that “[d]emocratic elections are a prerequisite for democratic governance and public confidence in government is established when citizens believe that their will has been freely expressed and honoured through genuine elections.”[2] They “...are not just a right in and of themselves. They cannot be achieved unless a range of other civil and political rights can be freely exercised and realised...[such as] freedom of association, freedom of assembly, freedom of movement, freedom of opinion and freedom of expression.”[3] The Commission of the Office of the High Commissioner for Human Rights has affirmed “...that democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing;”[4] Therefore, in assessing the rulings and judgments of the courts in petitions emerging from the 2007 General election and the procedural and substantive jurisprudence therein, we must consider election petitions not as litigation causes in their own right, but as part of a process of democratisation; part of the process of protecting and engendering the fundamental human rights of the Kenyan citizenry.

There has been and still is ongoing attempts at constitutional, legislative and institutional reform both the Judiciary and the electoral process particularly the main election management and oversight body, the Electoral Commission of Kenya (ECK). Concerning the judiciary, many have argued that election disputes should be removed altogether from the ambit of the discredited court system particularly in a highly politicised nation explaining that “the judiciary should not be unnecessarily exposed to the risk of being politicised, or being seen to be politicised, by its involvement in political disputes.”[5] This, I contend, is not an indictment of the court system in election dispute resolution in particular but an indictment of the Kenyan courts in general. It illustrates that the road to effective election dispute management by a court system begins through developing the public trust through upholding justice and fairness in everyday judicial functions and not just during the immediate election and post-election period.

This analysis begins with an analysis of the main findings of various institutions in regard to offences committed during the 2007 General Elections in order to identify what would subsequently be the subject matter of the election petitions presented to the courts. The analysis then summarises briefly the opinions of a number of relevant institutions and Commissions as to the capacity of the courts to handle the above mentioned offences. We then proceed to assess a selection of election petitions brought before the courts after the 2007 election reviewing and summarising the procedural and substantive jurisprudence emerging from those rulings and judgements. The next part of the analysis concerns conceptualising a way forward for the Judiciary. It first considers the international standards and requirements for a free and fair election and highlights the role of the Judiciary in relation to these standards. It then proceeds to consider the discourse on judicial activism, identifying the principles underlying the concept, its origins and development, and concluding with an argument for a more judicially active bench in general and more particularly in relation to the consideration of election petitions. The conclusion summarises the main points raised and considers the relationship between the judiciary and other actors involved in the election petition litigation process.

The 2007 General Election: Free and Fair?

Reports from various institutions provide us with an analysis of the offences committed during the 2007 election process. The IREC (Kriegler) Commission describes a ‘lack respect for laws or regulations’ during the 2007 General Election and the ‘blatant violation’ of the Electoral Code of Conduct. According to the Commission, the ECK itself deponed that “...the few politicians who were fined for breaches under the code in the run-up to the 2007 general elections have refused to pay the fines. ECK has had to file proceedings in the High Court in order to enforce its orders but to date these cases remain undetermined.”[6] Describing how the political parties conducted themselves during the election period the IREC Report explains that they “condone[d] without censure, their candidates’ violation of electoral regulations.”

Various observer reports were unreservedly damning; the Commonwealth Observer Report described abuse of state resources for party political purposes, reports of vote-buying and exceptionally high campaign expenditure and the overcrowding in polling stations by dominant parties’ agents, many of these without visible identification. The European Union Election Observer Mission (EU EOM) noted that “...candidates distributed money and goods widely, an activity that appears to be entrenched in the political culture of the country.” “The Kenya National Commission on Human Rights (KNHCR) in its monitoring report dated August 2008 named numerous ministers of government and other public officers who misused and misappropriated public resources in furtherance of partisan politics for the incumbent administration...It also gives examples of hate speech on the campaign trail.” The East African Community Observer Mission reported ‘instances of political intimidation at various polling stations throughout the country.’ “The Pan-African Parliament Election Observer Mission reported agitated political party agents engaging ECK officials at the national tallying centre in heated confrontation, in some instances becoming physical among political players.” Through its public meetings around the country, the IREC received concerns from the wananchi of widespread voter bribery, vote-buying, electoral violence and voter intimidation, use of hate speech and the harassment and intimidation of party supporters by rival supporters during the 2007 elections. The political parties themselves told the Commission that “[e]thnic hate speech and stereotyping was propagated and communities living outside their ‘indigenous’ provinces were threatened with eviction. There was ‘zoning’ too, which meant that dominant parties’ strongholds were out of bounds to the opposing party candidates.” Kriegler concludes that “political parties breached most of the rules in the national and international books regarding the orderly conduct of campaigns and elections.”

Concerning the processing of election results, the Kriegler Commission found that there were major discrepancies between the information on the forms 16A and 17A as well as between the constituency and national tallying centres; there were discrepancies in the turnout between presidential and parliamentary elections; “Almost all parliamentary and presidential election results for the constituencies sampled are erroneous, which means that very few of the officially published figures are actually accurate.”[7]

“IREC’s analysis of counting and tallying in ten constituencies with huge turnout discrepancies demonstrates convincingly that the discrepancies are probably due to human error and general incompetence, difficult working conditions at constituency tallying centres, pressure from KICC-based ECK staff on returning officers to provide fast results, pressure from candidates and incumbents eager to know their own electoral fate, lack of training and unclear messages as to when and how erroneous constituency results might be corrected...Poor understanding of the procedures at KICC...among staff members, temporary as well as permanent...”

This is a damning indictment of the 2007 General Election, those who managed and most of those who contested it. It is evident that the process was significantly flawed and in many parts of the country, citizens, voters and candidates had been denied their constitutional right to participate in a free and fair election. The above analysis illustrates the potential task facing the courts; as the principal dispute resolution mechanism in relation to electoral offences, the High Court could therefore expect numerous petitions and complaints of impropriety. However, public confidence in the Judiciary, the one arm of government that stands for justice and equality, had been completely eroded; it is instructive that the second placed candidate, upon request from the Ministry of Justice and Constitutional Affairs and the Electoral Commission of Kenya to seek redress through the court, publicly dismissed the possibility of receiving justice through the Judiciary which he deemed partisan and predisposed.

Post-election opinions on the Judiciary

In Kenya, as with many countries in democratic transition, there is no de facto separation between the judiciary and the other arms of government, particularly the executive. The Judiciary in Kenya has been described as ‘compromised by the internal and external patronage of the executive’; “...a weak actor whose key role [since multiparty politics in Kenya] has been to catalyse or deploy counter-democratisation tactics.”[8] During the transition to democracy in some Eastern European countries, the courts, through their rulings particularly on constitutional questions, managed to send powerful signals to the other arms of government as well as the public; these rulings reinforced the independence of the Judiciary as well as strengthening democratic ideals and institutions in those countries. This has not been the case in Kenya; if the dilemma is “[s]hould [the courts] make the legally correct decision and face the prospect of non-compliance and attacks on their own powers, or should they make a decision that avoids controversy, protects them...”[9] the evidence from the Kenyan judicial experience is not encouraging.

According to Nyaundi, there is a manifest confidence deficit in the capacity of the judiciary to resolve political disputes due to a distrust of the court system & personnel, inordinate delays in resolving political disputes, emergence jurisprudence lays a lot of emphasis on technicalities (service of pleadings/discovery, etc)and unclear prosecutorial powers over election offences. The Judiciary itself recognises this confidence deficit; in its Strategic Plan 2009-2012 lists as one of its objectives “[t]o improve the image of the Judiciary to restore public confidence in the institution.”[10] This lack of confidence is expressed in a number of opinions on the Judiciary particularly in the aftermath of the 2007 General Election. In their account of the post-election violence, KNCHR describe the national ‘crisis of confidence in the Judiciary’. Citing Makau Mutua they explain that “...there is little doubt that Kenya’s history of judicial subservience to the executive and inefficiency precluded a strong pitch on behalf of its independence.”[11] The appointment of new Judges by the Kibaki administration just before the 2007 General Election further entrenched suspicion and scepticism as to the neutrality and objectivity of the Bench. The Waki Report explained that “...the checks and balances normally associated with democracies are very weak in Kenya and are deliberately so...Individuals in various parts of...the judiciary...understand that, irrespective of the laws, the executive arm of government determines what happens.”[12] The Report explains that as a consequence, there is a sense of lawlessness; where even the Judiciary lacks integrity and autonomy. There is a widespread perception that through corruption and entrenched systems of patronage, those who break the law, whether during elections or otherwise, are ultimately unaccountable; there is a palpable air of impunity.[13]

The Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions described the Judiciary as ‘an obstacle in the path to a well-functioning criminal system.’[14] Citing ‘crony opaque appointments’ and ‘extraordinary levels of corruption’ as the central problems the Special Rapporteur made several recommendations: radical surgery to terminate the tenure of the majority of the existing judges and replace them with competent and non-corrupt appointees; Judicial appointment procedures should be transparent and appointments based on merit; the Judicial Service Commission should be reformed and strengthened; there should be a create a comprehensive complaints procedure on judicial conduct.[15]

In a statement forwarded to the Waki Commission,[16] the Registrar of the High Court outlined some of the major reform initiatives that the Judiciary was undertaking to improve the public perception as well as service delivery: “recruitment of more magistrates and expansion of the capacity to appoint more Judges, establishment of Court Users Committees where all actors in the criminal justice system meet and resolve operational difficulties; customer care desks to address public concerns; mobile courts for remote areas; construction of new courts around the country; annual open day sessions for interaction with consumers of justice; publicizing judicial service charter for education of the public; introduction of continuous legal education for judicial officers through the Judicial Training Institute; comprehensive review and simplification of Rules of Procedure, both civil and criminal; and the establishment of the Expeditious Disposal of Cases Committee which has devised modalities for reducing backlog of cases.”[17] The Commission predictably treated the above initiatives with scepticism; though commendable it stated, echoing the opinion of numerous commentators, that “nothing short of comprehensive constitutional reforms will restore the desired confidence and trust in the judiciary.”