In its history, the Kenyan Judiciary has never ruled in favour of a petitioner in the presidential elections, but those who filed previous cases will probably realise that current petitions stand a more realistic chance.
Before the 2010 Constitution there were no clear guidelines or timelines in either the Constitution or the electoral laws regarding determination of presidential election petitions.
In fact Mr Mwai Kibaki’s petition against the re-election of Daniel arap Moi in 1997 was, for instance, determined after 18 months.
This time round, the National Super Alliance (Nasa) presidential candidate Raila Odinga and running mate Kalonzo Musyoka will know their fate in just 14 days from the August 18 filing of their petition against Jubilee Party’s President Uhuru Kenyatta.
Ideally, the verdict is expected to be a product of an intense legal battle over the suit, a departure from the circus of yesteryears when presidential election petitions were a mere formality with most dismissed on the flimsiest technicality.
This is despite Nasa expressing its reservations on the fairness of the process, including the perceived overbearing influence of the Executive on the Judiciary.
Currently, the Constitution provides clear time limits within which a presidential election petition ought to be heard under Article 140.
And unlike previous instances when all parliamentary and presidential election petitions were filed in the High Court, with aggrieved parties accorded the right of redress in the Court of Appeal, the Constitution now designates the Supreme Court to determine presidential election petitions.
Mr Matiba – he of the famous “let the people decide” slogan – ran an electrifying campaign against President Moi in 1992 following the reintroduction of multi-party politics, finishing second.
The Ford Asili party candidate filed a petition one year later and, to this day, many Kenyans are green about the real grounds of the petition since emphasis was placed more on the technicalities and not merits of the case.
In filing the case, a sickly and physically incapacitated Mr Matiba instead asked his wife to sign the court papers.
However, upon appealing the case, the appeal judges – in a callous mockery of the opposition politician’s medical condition — dismissed Mr Matiba’s case on account that it had been “filed improperly”.
In their research paper titled “Comparative Analysis Of Presidential Election Petitions In Kenya and Other Jurisdictions” published in 2013, legal experts Monica Achode and Linda Awuor attribute the ruling to the National Assembly Elections (election petition) Rules of 1993, which provided, among other things, that “the petition ... shall be signed by all the petitioners.”
In a rather interesting development, Mr Mwau engaged top legal minds and the rest of country in a heated debate on the definition of a mere piece of paper – a foolscap. “The Boss”, as the boisterous Party of Independent Candidates of Kenya (PICK) leader is fondly referred to, sought to nullify Mr Moi’s 1992 win on account of “his ignorance on what constitutes a foolscap”.
Basing his argument on section 5(3)(b) of the Constitution, which required a presidential candidate to present “40 standard sheets of foolscap papers to the Commission”,
Mwau argued that Mr Moi did not use foolscaps and had therefore not been duly nominated by the electoral body.
Mr Moi opposed the application on the grounds that there was nothing known in law as “a standard foolscap”. Judges O’Kubasu, Gideon Mbito and John Mwera concurred with Mr Moi pointing out whether or not he understood what constitutes a foolscap, all candidates were entitled to participation in the election.
Mr James Orengo, who has actively been involved in presidential election petitions since 1992, sought to elbow Mr Moi from the presidency in 1993.
The then Ugenya legislator based his petition on section 9(2) of the Constitution of Kenya, which provided that a person shall not be elected to the office of the president for more than two terms with each term lasting for five years.
According to Mr Orengo, Mr Moi, who ascended to power in 1979 following the death of President Jomo Kenyatta, had already served for three terms — 1979-1983, 1983-1988, and 1988-1993.
But the judges opted to start the count afresh, thereby enabling Mr Moi to stay at the helm for a quarter century and not 10 years.
In effecting the two-term rule as per section 9(2) of the Constitution, Ms Achode and Ms Awuor argue in “Comparative Analysis Of Presidential Election Petitions In Kenya and Other Jurisdictions” that the drafters were smart and deliberately designed the relevant legislation to operate prospectively and not retrospectively:
With Moi allowed by the courts to participate in the subsequent 1997 poll, he again floored an array of political bigwigs in a divided Opposition, who included Mr Kibaki, Mr Odinga, Mr Wamalwa Kijana, Mrs Charity Ngilu, Mr Matiba, Mr Martin Shikuku and Prof Wangari Maathai.
Stung by the “unexpected” defeat, the four top losers – Mr Kibaki, Mr Odinga, Mr Wamalwa and Mrs Ngilu – called a joint press conference, where they vowed to petition against the victory.
But his case was struck out on a technicality of failing “to personally serve” petition papers to Mr Moi, the first respondent.
It is indeed baffling how drafters of the now defunct section 20(1)(c) of the National Assembly and Presidential Elections Act, expected a court server to gain easy access the busy and heavily guarded Head of State, to personally hand to him petition papers.
This petition, in 2013, was the first under the country’s first election to be held under the new Constitution.
During the voter identification and tallying process by the Independent Electoral and Boundaries Commission (IEBC), there was a failure of the electronic gadgets compelling IEBC to resort to the manual identification and tallying of results.
