Is it all over? No, not yet. The process of the presidential election does not end at the declaration of the result.
The process also includes the testing of that result. For even more important than the mathematical bottom lines, is that we should be sure that these figures have emerged out of fair and lawful processes.
Without this, tallying alone does not give a true result. The fairness of the processes is the key right. It is set out in the Bill of Rights. Art.38(2) on Political Rights states: “Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors . . .”
This is why if there is an election petition filed against the presidential results, the president-elect cannot be sworn in immediately. Article 141 provides that in such a case, the swearing-in takes place on, at least, “the seventh day following the date on which the Supreme Court renders a decision declaring the election to be valid.”
This is so that a fraudulent process does not become a concluded fact while serious questions about the poll have not yet been examined and determined. To prevent any ‘successful’ candidate from unlawfully benefiting from any fraud in the election, (unscrutinised as yet by a petition), the Constitution defers the swearing-in of the new President until the election has been determined to be valid.
This is a check against a president-elect changing the facts on the ground or seeking to influence public opinion on the petition in her favour contrary to the sub-judice rules.
The right to bring a petition to test whether there has been a lawful and procedurally valid election, is protected by Art.140 of the Constitution which deals with “questions as to the validity of the presidential election.”
It is under this provision that the current petition is before the Supreme Court, which has exclusive jurisdiction to hear and determine the petition (Art.162(3)(a)).
Steps in the election thus are covered by several articles of the constitution. Art.136 provides for the ‘Election of the President’ itself. This is to be done by registered voters in a national election conducted in accordance with the constitution and any applicable act of Parliament. Art.138 then prescribes the procedure as to voting.
It makes provision for what happens if candidates die before the election takes place or after voting has been completed but the result is not yet declared. (The election is cancelled and a new election is held).
Art.138 also provides for how the result is to be ascertained, such as the requirements of 50 per cent and one, and of obtaining at least 25per cent of the votes cast in each of the more than half of the counties. It also provides for what happens when these requirements are not met, and for run-offs.
The presidential election petition however may not be kept hanging. Art.140(2) requires that “Within 14 days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.”
Thus though the constitution gives every Kenyan the check to test the validity of the presidential election, it also provides the balance that such a challenge does not incapacitate the country by making it leaderless or with a questionable presidency, for more than a very short time (of two weeks). No vacuum in government arises by the exercise of this right because the previous President remains in office until the swearing in of the newly-elected President.
Similarly, the constitution gives a citizen the check to file an election petition but also provides the balance that this right must be exercised within seven days of the declaration of the result.
All this contrasts with past. The petition against Moi (Kibaki v Moi) after the 1997 Elections was filed in January 1998. It was not finally decided in the Court of Appeal (then the final court) until 2000. Moi however was sworn in and continued to exercise the office of the President for three years while a challenge to his election remained undecided in the courts. The new constitution prevents the repetition of such an undesirable scenario.
In the present petition, if the Supreme Court, (whose decision will be final), decides that the elections were valid, the president-elect will be sworn in. If the Court decides that the elections were invalid, a fresh election will be held within 60 days.
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