Kenya has marked slight over a year since the Supreme Court rendered its decision on the nullification of the presidential elections held on 8th August, 2017. The dust having settled, it is an appropriate time to reflect on the historic decision, albeit from a legal perspective.

Kenyans went to the polls on 8th August, 2017 to elect their president. Uhuru Muigai Kenyatta was declared the winner with his closest challenger Raila Amolo Odinga coming in second from a field of eight (8) candidates. Mr. Odinga and his running mate, Stephen Kalonzo Musyoka were dissatisfied with the way the elections were conducted and the outcome of the said presidential elections. Mr. Odinga and Mr. Musyoka challenged the declaration of results by the Independent Electoral and Boundaries Commission (IEBC) at the Supreme Court of Kenya in Raila Amolo Odinga & Another –vs- IEBC & Others (2017) eKLR (the 2017 Presidential Election Petition). This was the second time the result of a presidential election was being challenged in the Supreme Court the first one having been challenged in the year 2013.

After receiving arguments from counsel representing the parties, the Supreme Court delivered its judgment on 1st September, 2017. By a majority decision of four (4) to two (2), the Court held that the presidential elections was not conducted in accordance with Constitution of Kenya, 2010 (the Constitution) and the applicable law thereby rendering the declared result invalid, null and void. The Court proceeded to order the IEBC to organise a fresh presidential election in conformity to the Constitution and the applicable election laws, within sixty (60) days of the judgment.

In this article, we discuss the position of the law as relates to the application of section 83 of the Elections Act, 2011 (the Elections Act) to the determination of election petitions. This section sets the standard of proof for election petitions in Kenya. The position on the interpretation of the provisions of section 83 of the Elections Act and its application to the determination of election disputes was settled in the 2017 Presidential Election Petition. Elections in Kenya are governed by the Constitution and other principal legislations in addition to the Elections Act include the Independent Electoral and Boundaries Commission Act, 2011 (the IEBC Act) and the Election Offences Act, 2016 (the Elections Offences Act). The Constitutional threshold is set out in Articles 10, 38, 81, 86, 88 and 138 and the principles cutting across all these Articles include integrity, transparency, accuracy, accountability, impartiality, simplicity, verifiability, security and efficiency as a free and fair election by way of secret ballot, free from violence and an election conducted by an independent body in transparent, impartial, neutral, efficient, accurate and accountable manner.

Section 83 of the Elections Act

Section 83 of the Elections Act provides that:
“No election shall be declared to be void by reason of non-compliance with any written law relating to that 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 the election.”

The term “or” used makes the two limbs of the provisions of section 83 of the Act disjunctive under our law unlike under English law which is conjunctive where the term “and” is used in a similar provision in the English Act. The conjunctive term has also been used in the Election laws of various Commonwealth countries such as Nigeria, Ghana,Zambia, Tanzania and Uganda.

The Supreme Court explained the disjunctive application of section 83 of the Elections Act to be that an election can be nullified if it showed either that the elections were not conducted in accordance with the Constitution and the written law relating to elections or that the noncompliance affected the result of the election. In other words, a petitioner who proves that conduct of the election in question substantially violated the principles laid down in the Constitution as well as other written law on elections, will on that ground alone, void an election. A petitioner will also be able to void an election if he is able to prove that although the election was conducted substantially in accordance with the principles laid down in our Constitution as well as other written law on elections, it was so fraught with irregularities or illegalities as to affect the result of the election. The Supreme Court majority however rejected the English position that even trivial breaches of the law should void an election stating that that position was not realistic; in recognition of a global truism that the conduct of an election is rarely perfect. Applying this test to the evidence presented before them on the presidential elections conducted in Kenya in August of 2017 the Supreme Court in its majority decision found that the elections were neither transparent nor verifiable and that on that ground alone and on the basis of the interpretation of section 83, they had no choice but to nullify the election and to direct the IEBC to conduct fresh presidential elections.

Quantity vis-à-vis Quality

The Supreme Court discussed at length the quantitative and the qualitative test as a basis of determining whether an election result ought to be voided. In a paper titled Election Technology Law and theConcept of “Did the irregularity affect the result of the elections?”’ prepared by Hon. Justice Prof. Otieno-Odek prior to the determination of the 2017 Presidential Election Petition, the author discusses the quantitative and qualitative test. Justice Odek states that the quantitative element consists of requirements for an accurate, verifiable and accountable system while the qualitative element requires that elections must be free from violence, intimidation, improper influence and corruption and that there must also be transparency and administration of elections in an impartial, neutral and efficient manner. The quantitative test is therefore most relevant where the numbers and figures are in question whereas the qualitative test is most suitable where the quality of the entire election process is questioned and the Court has to determine whether or not the election was free and fair.

In the Court of Appeal decision of Daniel Ongong’a Abwao vs Mohamed Ali & 2 Others (2018) eKLR which was an appeal filed by a voter within Nyali Constituency against the decision of the High Court upholding the election of Mohamed Ali Mohamed as the Member of the National Assembly for Nyali Constituency, this threshold was applied by the Court and it was found that the appellant was unable to prove that the elections substantially violated the principles laid down in the Constitution as well as other written laws on elections. The appeal was dismissed.

Amendment

The annulment of the presidential elections by the Supreme Court of Kenya triggered the introduction of the Election Laws Amendment Bill, 2017 (the Bill) in Parliament to amend various provisions of the Elections Act, the IEBC Act, the Election Offences Act. The Bill, despite strong opposition from a section of Kenyans, was passed by Parliament, the Senate and finally transmitted to the President for assent. The President neither assented to the Bill nor returned it to Parliament and after fourteen (14) days of its passing, the Bill became law by virtue of the provisions of Article 116 of the Constitution. The law was published in the Kenya Gazette on 2nd November 2017 thus becoming effective as the Election Laws Amendment Act No. 34 of 2017 (the Election Laws Amendment Act).

The Katiba Institute Petition Following the passing of the Election Laws Amendment Act, Katiba Institute & 3 Others vs Attorney General & 2 Others (2018) eKLR (the Katiba Institute Petition) was a Constitutional Petition filed contending that the amendments were unconstitutional. Under the amendments, section 83 of the Election Act now reads as follows:

“(1) A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that- (a) the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and (b) the non-compliance did not substantially affect the result of the election.”

The petitioners’ argument was that by amending the law from a disjunctive test to a conjunctive one by use of the word “and” instead of “or”, it would be difficult to challenge an election even where there was violation of Constitutional principles.

The High Court (Mwita J) delivered its decision in the Katiba Institute Petition on 6th April, 2018 noting that any amendments to the election laws must be forward looking in order to make elections more free, transparent and accountable, than to shield mistakes that vitiate an electoral process. The Court therefore held that “there was no constitutional compulsion or rational in amending section 83 of the Act to remove the disjunctive word ‘or’ and introduce the conjunctive word ‘and’ so that only where there are failures in complying with the constitution and election laws and they substantially affected the results should an election be nullified. Removing the twin test for annulling faulty election results negates the principles of electoral system in the Constitution… allowing such an amendment would be to ignore constitutional principles in our transformative Constitution that there should be free, fair, transparent and accountable elections.” The Court declared that the amendment of section 83 along with other specified sections of the Elections Act was invalid.

Conclusion

The position as relates to the interpretation of section 83 of the Election Act is now settled both by the Supreme Court of Kenya and also by the other Superior Courts. It is now for Parliament to effect the necessary changes by deleting the amended section 83 of the Act and restoring the initial disjunctive provision. Our fidelity to the Constitution that we gave unto ourselves should be maintained and upheld at all times.

It is apt to close with the words of the Supreme Court in the 2017 residential Election Petition:
“Therefore, however burdensome, let the majesty of the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our rivers and oceans; let it boomerang from our hills and mountains; let it serenade our households from the trees; let it sprout from our institutions of learning; let it toll from our sanctums of prayer; and to those, who bear the responsibility of leadership, let it be a constant irritant…

It is also our view that the greatness of a nation lies not in the might of its armies important as that is, not in the largeness of its economy, important as that is also. The greatness of a nation lies in its fidelity to the Constitution and strict adherence to the rule of law, and above all, the fear of God. The Rule of Law ensures that society is governed on the basis of rules and not the might of force.”