Sunday, June 9, 2013

Why key leaders stand to reap from Raila loss

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 Supreme Court judges during the hearing of the just-concluded Presidential election petition. Photo/File
Supreme Court judges during the hearing of the just-concluded Presidential election petition. Photo/File 
By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted  Saturday, June 8  2013 at  20:16
IN SUMMARY
  • The major criticism against the Supreme Court decision is that although it may have raised the threshold for one to overturn a poll result, it lowered standards for management and conduct of elections.
The Supreme Court judgment on the election petition by former Prime Minister Raila Odinga might come to the rescue of politicians whose victory in the March 4 poll has been disputed in court.
The Judiciary has started marathon hearings to meet the September deadline for concluding all election petitions as set out in the Elections Act.
Experts say the Supreme Court not only raised the bar for nullifying an election, but also strongly reinforced the existing law on elections.
Lawyers yesterday told the Sunday Nation that the March 30 ruling is expected to be a key defence for 44 MPs, 20 governors and seven senators whose victory has been challenged.
The Supreme Court rejected Mr Odinga’s petition against the election of President Uhuru Kenyatta, saying that although there were irregularities in the election, they could not change the outcome.
The challenge here is that proof of irregularities will not be enough to overturn victory. Petitioners must demonstrate that the anomalies were large enough to alter the final results.
In the Raila case, the Supreme Court led by Chief Justice Willy Mutunga said the irregularities did not affect the outcome of the presidential election.
Mode of participation
“The evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process. Therefore, we do not see any need to disturb the outcome,” said the Supreme Court.
Law Society of Kenya chairman Eric Mutua and lawyers Ahmednasir Abdullahi and Ken Ogeto -- who participated in the Supreme Court petition -- said it had become increasingly difficult to nullify an election.
Mr Mutua says the Supreme Court judgment will be a cardinal reference point for those facing election petitions.
“I expect more than 80 per cent of the election cases to be thrown out because it is next to impossible to meet the Supreme Court threshold,” said Mr Mutua.
Burden of proof
He says most of the election petitions revolve around alleged irregularities.
Senior Counsel Abdullahi, who represented the electoral commission chief Issack Hassan in the petition, says the court raised the burden of proof and hardened the test for petitioners seeking redress.
Mr Ogeto said the decision was most binding on elections in Kenya and would be cited throughout the Commonwealth.
The defence teams are also expected to cite reports by international observers who declared that the election was largely free, fair and credible, and that the electoral commission had conducted its business in an open and transparent manner.
But Mr Ogeto, who was part of President Kenyatta’s defence team, says the Supreme Court did not break any new ground on election laws
“The court reinstated the existing jurisprudence. It reinforced the principle that it is difficult to nullify elections. The threshold is the same.”
The governors facing petitions include Evans Kidero (Nairobi), Hassan Joho ( Mombasa), Jack Ranguma (Kisumu), Alfred Mutua (Machakos), Wycliffe Oparanya (Kakamega), Samuel Kuntai (Narok) and Nyeri’s Nderitu Gachagua.
Others are Amason Kingi (Kilifi), Peter Munya (Meru), Issa Timany (Lamu), Nyaga Wambora (Embu), Nathif Adma Jaama (Garissa), Mtuta Mruttu (Taita-Taveta) and Kajiado’s David Nkendienye.
In the Senate, Minority Leader Moses Wetang’ula (Bungoma), Johnstone Muthama (Machakos), Billow Kerrow (Mandera), Wilfred Lesan (Bomet), Boy Juma Boy (Kwale) and Chris Obure of Kisii are fighting for their seats.
But it is in the National Assembly that most members are in court. The election of Esther Murugi (Nyeri), Paul Otuoma (Funyula), Mary Wambui (Othaya), Eseli Simiyu (Tongaren), Ababu Namwamba (Budalang’i), Olago Aluoch (Kisumu West), Joel Onyancha (Bomachoge Borabu) and Partrick Musumba (Kibwezi West) has been disputed.
Section 75 of the Elections Act demands that all electoral disputes be concluded within six months of filing.
Mr Wetangula’s election is being challenged by former Cabinet minister Musikari Kombo, while Kanu secretary- general Nick Salat has disputed the election of Mr Wilfred Lesaan as Bomet Senator.
The major criticism against the Supreme Court decision is that although it may have raised the threshold for one to overturn a poll result, it lowered standards for management and conduct of elections.
It also appeared to forgive irregularities in elections as long as they were not of a ‘damaging magnitude’.
But Mr Mutua cautions judges against ‘blind application’ of the precedent because the stakes in parliamentary elections are not as high as in a presidential contest. He says the judges will be expected to interrogate the circumstances specific to the various cases.
Mr Ogeto says there are two cardinal tests for nullifying election results.
The first is quantitative where one must demonstrate that the irregularities affect the outcome of the election in terms of numbers. This would be in circumstances where the winner may be overtaken especially if a recount is ordered.
Sham process
Then there is the qualitative test in which a petitioner can seek to prove that the whole election process was a sham.
To meet the September deadline, the Chief Justice has deployed judges across the country to hear the disputes.
According to a schedule released by the Chief Justice, High Court judges Said Chitembwe, Erick Ogola and George Dulu are hearing eight petitions in Western. Justice Francis Tuiyot will handle three petitions in Busia, while Justice David Majanja will sit in Machakos.
Judges Fred Ochieng, Maureen Odero and George Odunga are presiding over similar cases in Mombasa.
Eight petitions filed in Garissa will be heard in Nairobi due to logistical challenges, Dr Mutunga said.

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