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Apex court told to clarify poll invalidation threshold

Mukalo Kwayera @kwayeram

The Carter Centre has challenged Kenya’s Supreme Court to specify criteria on which lower courts should base their judgements when assessing factors that should lead to the annulment of an election.

In a report that analyses the resolution of electoral disputes arising from the 2017 presidential, parliamentary and county elections, the organisation which was part of the Elections Observer Mission, argues that lower courts face significant hurdles when considering whether electoral violations were substantial enough to warrant annulment of results.

To enable Kenya’s courts make consistent rulings on future election petitions, the Centre wants the Supreme Court to clarify the factors that lower courts should apply when considering what constitutes a substantial violation of the Constitution’s requirement for free and fair elections.

Low threshold

In a statement, the Centre observes that despite concerns that an April 2018 High Court decision that struck down most of the provisions of the 2017 elections Act amendments had reaffirmed a low threshold for nullifying an election by not requiring that violations affect the election results, recent rulings by the Supreme Court indicate that it is indeed aware that the threshold is low.

It observed that as a result of the 2018 High Court decision, petitioners challenging election results do not have to prove that any non-compliance with the law or Constitution impacted the results of the polls, which means the current legal framework for electoral disputes is at odds with the majority of international practice.

Violations

“The Supreme Court ruling overturned the August 2017 presidential election, without saying whether the violation impacted the election results, and ordered that a fresh election be held.

The Carter Center encourages the Supreme Court to clarify the factors that lower courts should apply when assessing potential violations of constitutional principles regarding free, fair, transparent, and accountable elections, so that the difference between substantial and non-substantial violations is clear,” said the Centre headed by former US President Jimmy Carter.

In its report, the Center looked at how the High Court and Court of Appeal applied the 2017 Supreme Court rulings in a number of cases in which the results of an election were challenged. It found that lower courts reached vastly different conclusions when applying the legal precedent and that there was no agreement among the lower courts on what constitutes a substantial versus non-substantial violations.

But lawyer Moses Kurgat argues that the four tiers of the Kenyan Judiciary have specific parameters through which to operate and therefore interpretations by one for the other is necessary.

In a conversation with People Daily, Kurgat posits that the courts have independent roles. “Our courts are independent of each other. The independence of the High Court and the Court of Appeal cannot be taken away by the Supreme Court. Courts base their verdicts on hard facts and rules, not impositions,” he said.

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