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 The views expressed in this book are the views of the authors and do not necessarily reflect the views or policies of IDLO or its Member Parties, or the JTI. All rights reserved. This 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. This book is funded by DANIDA. The findings and conclusions contained within are those of the authors and do not necessarily reflect the positions or policies of DANIDA. Published by International Development Law Organization (IDLO) Viale Vaticano, 106 | 00165 Rome | Italy Tel: +39 06 40403200 | Fax: +39 06 40403232 Web: www.idlo.int | Email: [email protected] | Twitter: @IDLO and Judiciary Training Institute (JTI) P.O. Box 28872-00200 | Nairobi | Kenya Web: www.judiciary.go.ke | Email: [email protected] / [email protected] Layout and printing by: Amos B. Omollo, [email protected] ISBN 9788896155196 ii 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 Kenya’s 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: The Constitutional Threshold for Valid Elections in Kenya and Section 83 of the Elections Act - Heidi Evelyn and Waikwa Nyoike 78 IV. Standards of Review and Resolution of Electoral Disputes in Kenya: A Review of the Jurisdiction of the High Court; The Court of Appeal and The Supreme Court- Muthomi Thiankolu 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; The 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? The Role ofAmicus 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 iii Foreword While elections are the hallmark of every democratic society, Kenya’s history with elections has been anything but satisfactory. The 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. The lowest moment of these sad developments were the 2007 elections. The 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 confidence crisis that the institution faced in the eyes of the Kenyan people as it pertained to electoral disputes. The 2010 Constitution and the Judiciary Transformation Framework provided us with a framework for ushering in necessary electoral reforms, reclaiming public confidence. 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. The Supreme Court also disposed of the petitions relating to the Presidential election and several appeals from the Court of Appeal. This 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 iv 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. The myriad of perspectives allow for a full appreciation of the manner in which the Judiciary dealt with the different issues before them, summarizes key lessons from the decisions, identifies areas of concern, and illustrates future improvements required. As a Judiciary this will also help us continue reflecting on our performance and promote a coherent and indigenous jurisprudence in the electoral field. I thank the learned authors for their contributions. Through 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. This is one model of the collaborations between the Bench and academia that forms part of my vision for a new Judiciary that is confident 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. This 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 v Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence Judiciary Training Institute The 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 staff. 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 staff, 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. The 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. The 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. International Development Law Organization The 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 conflict and striving towards democracy. IDLO has its headquarters in Rome, a Branch Office in The Hague, liaison offices for the United Nations in New York and Geneva, and country offices in Afghanistan, Honduras, Indonesia, Kenya, Kyrgyzstan, Liberia, Mali, Mongolia, Myanmar, Somalia, South Sudan and Tajikistan. vi 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