There is a likelihood of having a mini-election after the Supreme Court opened the floodgates of suits contesting various electoral wins.
So far, 330 cases have been filed to challenge the positions of governors, Members of Parliament and Members of County Assembly.
The big task now is for those who are contesting the election of their competitors who won, to prove their case. Some opine that the Supreme Court ruling hinging on process rather than numbers in deciding whether or not the winners the election was credible may come in handy for the petitioners.
In this case, it will be interesting to see how the new Supreme Court precedent -- that in place of numbers, also to be considered will be if all forms had security features, were signed by agents, presiding and returning officers, and if they were simultaneously sent with the text entered on the KIEMS kit.
“...elections are not only about numbers as many, surprisingly even prominent lawyers, would like the country to believe.
“Even in numbers, we used to be told in school that to arrive at a mathematical solution, there is always a computational path one has to take, as proof that the process indeed gives rise to the stated solution,” the Supreme Court judges lead by Chief Justice David Maraga ruled.
However, Supreme Court Judge Njoki Ndung’u differed and she referred to the majority decision as a having unleashed jurisprudential confusion.
“The majority has failed this critical test. I must add that the value of their deviation from precedent damages more than it offers utility. It will cause damage to the legal system because it turns the entire electoral jurisprudence on its head,” she ruled.
Lawyer Victor Ogondi agrees that the decision by the Supreme Court to nullify the 2017 presidential election was the catalyst behind the huge number of the election cases compared to 2013.
“The Supreme Court decision is the reason why we have a huge number, but people are misled since the case will be determined on their own merits. On transmission of results, it will not be a general ground. It does not mean all the petitions will succeed,” said lawyer Ogondi.
The lawyer explained that each case will be assessed on a case-to-case basis.
“The cases require specific issues. In the Supreme Court judgment, you will see that there were a number of forms that were missing. If there are forms which have been photocopied, there will be an explanation for that. The court will deal with what is before it. In terms of burden of proof, the court raises the standard of proof.”
Weighing in on the matter, lawyer Charles Kanjama noted that NASA flagbearer Raila Odinga’s presidential petition will have little or no effect to the other cases before the lower courts.
The Nairobi-based lawyer is of the view that the burden of proof still lies with the person who contested and the election cases will be determined on the circumstances pleaded in the papers.
“The Supreme Court has said it has not changed the burden of proof on the petitioner. It does not mean that the other cases will go the same way. It’s too early to say. It will have to be on a case-to-case basis. The percentage of proof will be higher. We can’t go lower than in 2013,” said lawyer Kanjama.
He said that in 2013, there were 185 election cases. Out of that, only 10 per cent succeeded, meaning that only 18 elections were conducted.
In the by-elections, only two petitioners managed to get the seat, meaning that there was only a one per cent success in the court-initiated process.
In 2013, the Supreme Court overturned 90 per cent of the decisions by the Court of Appeal requiring by-elections.
Lawyer Kanjama observed that the apex court might not be moved this time to throw away election petitions filed before it.
“My expectation is that the Supreme Court will be slower this time to overturn the decision of the Court of Appeal,” he observed.
He noted that the elections law had also changed therefore when an appeal is filed, execution of the court’s verdict is halted immediately meaning the person in office remains.
