Stop These Cheeky Election Lawsuits

Stop These Cheeky Election Lawsuits

TUESDAY, 17 JULY 2012 15:49 BY TIMOTHY KABERIA

Last Monday, the courts in Nairobi tossed out cases seeking to stop the IEBC from creating eighty new constituencies before the next election. Immediately after the ruling, lawyers for the petitioners vowed to appeal the judgment with Nairobi lawyer Evans Ondieki acknowledging the uphill task ahead of him and his clients. A few days later Justice Minister Eugene Wamalwa weighed in on the matter noting that these cases are time barred.

Kenya is an up and coming democracy where the petitioners are within their constitutional right to seek the court’s help in stopping political disenfranchisement. Unfortunately, the interpretation of the law sometimes requires an assessment of political and logistical realities on the ground. Interpreting the law regarding a political case in a transitional democracy places the judiciary between a rock and a hard place. Tough decisions have to be made. Dr. Willy Mutunga and his team have the unenviable opportunity to decide whether to entertain frivolous lawsuits or inadvertently endorse political gerrymandering.

Frivolous lawsuits are those filed by a party or a lawyer who knows clearly that the lawsuit lacks merit, lacks supporting legal argument or factual basis for the claims. Such lawsuits waste time, money, and judicial resources. Lawyers and their clients file frivolous lawsuits for all sorts of reasons. They may be filed for purposes of harassment or coercion, such as to coerce the defendant into paying more or accepting less money than is rightfully due. They may also be filed due to lack of due diligence by an attorney in investigating a client's claim, or other reasons.

Gerrymandering on the other hand, is the manipulation of electoral zones to favor certain political groups. The term gerrymandering is derived from Elbridge Gerry, the governor of Massachusetts from 1810 to 1812. In 1811, Governor Gerry signed a bill into law that redistricted his state to overwhelmingly benefit his Republican Party. Gerrymandering has been challenged many times in US federal courts. In 1962 for instance, the Supreme Court ruled that districts must follow the principle of "one man, one vote" and have fair borders and an appropriate population mixture. As recently as 1985 the Supreme Court ruled that manipulating district borders to give an advantage to one political party was unconstitutional.

Gerrymandering is manifested in the form of excess vote, wasted vote or stacked vote. The "excess vote" type of gerrymandering concentrates the voting power of the opposition into just a few areas in order to dilute that party’s power outside of those regions that contain an overwhelming majority of the opposition's voters. “Wasted vote” is a method of gerrymandering which dilutes the voting power of the opposition across many areas and consequently prevents the opposition from having a majority vote in as many regions as possible. The "stacked" method of gerrymandering involves drawing bizarre boundaries to concentrate the power of the majority party by linking distant areas into specific, party-in-power zones. There is no doubt that the controversial Ligale led electoral boundaries review in Kenya carries all three traits of gerrymandering.

This is an election year in Kenya. It is not just another election. This election carries serious ramifications on the future of the country. Kenya could easily have a President who is Hague bound or worse still find itself in a situation reminiscent of the 2007 skirmishes. It is the first election under the new constitution. It is the first election under a seemingly truly independent electoral commission and a judiciary that has some teeth. This election will determine the country’s future politically, economically and otherwise. It is because of the seriousness of the coming elections that Kenyans cannot afford to waste time, delay an already past due election in the name of listening and determining lawsuits that have no chance of seeing the light of day.

It is conceivable for people to get a little too exercised and overwhelm the judiciary in a country where the citizens just acquired the freedom and ability to seek justice without any encumbrances. Lawyers, however also have a civic duty to use due diligence when advising their clients on the merits and demerits of the lawsuits they seek to pursue. Political cases are not class action lawsuits where the plaintiff seeks to coerce the defendant in paying out huge sums of money. The implications of the lawsuits against the IEBC have a far reaching effect beyond the commission. If the courts entertain such cases at this critical moment in our electoral process there is likelihood that the elections will not be held on schedule, a lot of judicial resources will have been wasted and a constitutional crisis created where an illegal government will be responsible for taking care of state matters awaiting the determination of these cases.

Citizens and public institutions have a responsibility to reorder priorities by putting first things first. What is Kenya’s top priority right now? Ensuring that there is a free and fair election in a timely manner or entertaining time consuming and resource draining frivolous lawsuits that have no hope of being won before the elections?

Timothy Kaberia is a consultant on African politics/culture and former VOA broadcaster based in Washington D.C.