Wachira Maina, the constitutional lawyer and newspaper columnist, has written and spoken about weaknesses in the judgment of the Supreme Court on the 2013 presidential petitions, pointing out that unless the court is prepared to depart from the reasoning it adopted in 2013, it is likely to dismiss the election petition that is currently before the court.
In 2013, the court established that the burden of proof in an election petition lay with the petitioner, an enunciation of the general rule in civil cases which is to the effect that the plaintiff, or the person that files a suit in court, assumes the burden of bringing evidence that will prove the case to the satisfaction of the court.
While this rule is reasonable in ordinary civil cases, its application in electoral disputes brings up the challenge that a petitioner who comes to court is required to prove a case against the Independent Electoral and Boundaries Commission (IEBC), when the commission is the custodian of all relevant records relating to the election.
In such a situation the petitioner is at the mercy of the commission when seeking documents that would support the petition.
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It is possible for the commission to fall into the temptation of delaying or blocking access to its records, as a way of defeating the petition.
In 2013, the delay by the IEBC in providing records, without which an election petition could not have been filed, necessitated Mr Raila Odinga as an intended petitioner, to first file subsidiary proceedings in the High Court where he obtained an order compelling the IEBC to provide records as would have enabled the drafting of the petition before the Supreme Court.
There is an inherent assumption, when an election petition is filed, that the IEBC will furnish all documents that are relevant for deciding on the petition.
As the custodian of electoral records, the IEBC bears the burden of making such records available when these are needed to resolve disputes.
Even in the absence of disputes, making its electoral records available is part of the burden of accountability that the IEBC must discharge.
There is also an assumption that the IEBC will act with integrity in the management of the records in its possession.
Missing, incomplete, or forged records strike at the heart of accountability on the part of the IEBC, and also undermines the equality of arms on which the burden of proof is founded.
In 2013, without anybody’s prompting, the Supreme Court ordered an independent scrutiny of the forms evidencing the presidential results declared by the IEBC.
Surprisingly, however, the court made sparing use of the results of the scrutiny in its eventual judgment.
The body of the judgment showed that out of the 33,400 Forms 34 used in the election, only 18,000 were scrutinised.
The scrutiny revealed many instances of missing Forms 34.
As regards Forms 36, which were the constituency tally forms (in the 2017 election referred to as Form 34B), the scrutiny found that 75 out of the 290 forms were missing, and that there were several instances where these forms were duplicated.
In 2013, the Supreme Court remained lenient towards the IEBC in the face of missing records which the court’s own scrutiny had confirmed.
The judgment did not bother to show how IEBC’s claim that its results were verifiable could have been sustained in a situation where at least one quarter of the constituency tally forms were missing.
Not unlike 2013, the IEBC has already indicated that a number of forms are missing in relation to the 2017 election.
It seems, however, that the elections body retains the freedom to announce what it calls results even when these are not supported by all necessary documentation.
How the court resolved this issue in 2013 may have been a factor in how the IEBC is behaving in the 2017 election.
The “missing evidence rule” is a doctrine in the law of evidence to the effect that where a party fails to produce evidence that would have been proper to present, the court is allowed to conclude that the evidence would have been damaging to the party’s case.
In 2013, the treatment that the Supreme Court gave to the missing evidence from the IEBC clearly offended this rule, and may have become the basis for the confidence that the IEBC found to announce results without waiting to receive all the supporting forms.
In 2013 judgment, the Supreme Court huffed and puffed in its discussion on the related question of the standard of proof required in election petitions.
In the end, judgment failed to show how the applicable standard of proof had been deployed in the case before the court.
In several instances, the court merely recited judicial authorities from various jurisdictions, but did not tie its long discussions into an understandable conclusion.
Parties preparing for this year’s petition will arrive in court without a proper understanding of how the court is likely to address this issue.
A problematic issue from the 2013 judgment is the discussion on what effect illegality and irregularity, if proved, would have had on the results.
The constitutional requirement is that the voting system must be “simple, accurate, verifiable, secure, accountable and transparent.”
On its part, the Elections Act provides that non-compliance with a written law when conducting an election does not invalidate the election, if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of that election.
Because of a shared legal heritage, this provision is a replica of the electoral laws of several Commonwealth countries, for example, section 146 (1) of Nigeria’s Electoral Act of 2006.
Because of the similarity of this provision across a number of territories, its interpretation elsewhere is of interest to Kenyan judges.
In this regard, the leading judicial authority is a 1974 decision of the English Court of Appeal, in the case of Morgan v Simpson, which Kenya’s Supreme Court cited in its judgment.
The court also cited Nigerian judicial authorities that had applied Morgan v Simpson.
Mr Maina’s criticism was that the decision to apply Nigerian judicial authorities saw the Kenyan Supreme Court introduce into the country Nigeria’s poorly reasoned court decisions.
Nigeria’s Prof Itse Sagay, an academic and a legal practitioner, has also criticised his country’s Supreme Court for a wrong interpretation of Morgan v Simpson and also section 146 of the country’s Electoral Act.
The effect of the criticism is that Nigerian courts have misinterpreted and misapplied Morgan v Simpson and that the authority was similarly misapplied in Kenya in 2013.
The substance of Morgan v Simpson is that if the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not.
Secondly, if the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls provided that it did not affect the result of the election.
Third, even though the election was conducted substantially in accordance with the law as to elections, if there was a breach of the rules or a mistake at the polls which affected the result, then the election is vitiated.
A weakness of the 2013 judgment is that, after a discussion of the applicable law, which included the misinterpreted Morgan v Simpson, the court failed to make a determination on how its finding of fact related with its view of the law.
Technologies were an issue in 2013 and, by all indications, will be an issue in the 2017 petition.
In 2013, the Supreme Court shrugged off IEBC’s failures by taking note of the fact that technologies are not perfect and can fail.
For 2017, the central questions with regard to technologies is whether these were used in the manner that the IEBC had represented, and whether the use was consistent with running the elections in accordance with the applicable law.
The applicable law, in this case, is partly found in the Court of Appeal judgment that a presidential election will take place in each of the 290 constituencies, and that all results would be backed by the applicable statutory forms.
Ms Guchu rejects all the allegations set out in the petition filed by Mr Odinga.