New court ruling may reshape power over Kenya’s votes

Kenya challenged vote

Kenya election ballot

A Kenya High Court ruling has determined that the presidential election votes–which are counted only at each polling station–are to be treated as final when announced at the initial parliamentary constituency tally centre.  This means that any changes to the tally at the national level in Nairobi by the IEBC, the electoral management body, will have to come in the form of a court challenge.

This approach would have prevented the ECK and IEBC from taking the approach of 2007 and 2013, where national results relied on changed and missing vote counts.

The key thing to remember about Kenyan elections is that the votes are all hand marking of paper ballots, which are counted only at each polling station.  The results are recorded on Form 34 and–if law is followed–posted for the public on the door to the polling station.

The ballots and another exected copy of the results are sealed in the ballot box.

After that, it is all a power struggle and smoke and fog–high tech and low tech.  Arithmetic is done or not done in accordance with power and interests.

The court appears to have moved some power back toward the voters and away from central government.  We shall see.

I will follow up after I’ve read the opinion and caught up on some of the “moving pieces” on the election preparation.

Congratulations to Maina Kiai and his colleagues who brought the constitutional challenge.

Will Kamlesh Pattni’s court victory encourage Uhuru and Ruto on ICC cases?

"Magnate"

Obviously this is an irreverent question, and not the sort of thing that could be countenanced in academia or in diplomatic circles. But I just couldn’t help myself since I write about practical realities in politics and governance here, while watching the podcast of Maina Kiai and Joel Barkan discussing the “Implications of the Kenyan Election” @NED and a question from the audience has inquired about the latest Pattni ruling.

Last week we learned that Kamlesh “Paul” Pattni, one of Kenya’s wealthiest “men of business” (not like Uhuru, apparently, but very wealthy) had been the beneficiary of a big legal breakthrough as the media reported that High Court Justice Joseph Mbalu Mutava had ruled back in March that Pattni could not be prosecuted in the trial courts for the notorious Goldenberg corruption scandal.

“Judge defiant after clearing Pattni of Goldenberg scam”

The judge also observed that the report by Commission of Inquiry chaired by former Court of Appeal judge Samuel Bosire on the scandal on which the existing criminal case was anchored is flawed and that most witnesses had died or their memories have faded.

Pattni moved to the High Court in August last year seeking to quash the criminal proceedings at the magistrate’s court and stop the State from further criminal prosecution on the scandal estimated to have cost Kenya billions of shillings.

On Pattni’s prayer that the media be barred from reporting on the case, the judge said that the court could only intervene to set parameters of reporting to protect someone’s rights.

Last November, Justice Mutava’s conduct was put to question in a petition filed against him by Havi and Company Advocates on behalf of the International Centre for Policy and Conflict (ICPC). It sought to have the judge removed from office over his handling of the Pattni cases.

ICPC had argued that the whole matter had not been handled through the correct procedure and some court orders made were outside of the law.

The petitioner had faulted the judge’s handling of the case and accused him of being part of “an orchestrated cover-up to aid and abet Pattni’s criminal conduct”.

Justice Mutava was later transferred to Kericho from where he wrote the controversial judgment on Mr Pattni’ application for the case to be scrapped.

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Kenyan High Court, while finding no jurisdiction to examine IEBC’s process because it touches on the election of a President, states that civil society case raises issue that should be examined in appropriate forum

My personal heroes with Kenyan civil society, the African Centre for Open Governance, went to the Kenyan High Court this morning with a petition seeking equitable relief to direct the IEBC to follow the election law, focusing on the verification of actual voting by polling station as discussed in my previous post.

The court ordered argument on jurisdiction alone at 11:00am in front of a three judge panel appointed by the Supreme Court, with ruling to be announced at 3:00. The ruling was not announced until 4:30. The court ruled essentially that any challenge to IEBC procedure related to the presidential election such that it could only be brought in the Supreme Court of Kenya. IEBC’s lawyer also argued that the Supreme Court could only hear the case after the IEBC declares an election result, although that would presumably be a decision for the Supreme Court itself. Thus the High Court “struck off” the case, finding no jurisdiction to act.

However, the Court did state that they had reviewed the affidavits and other evidence presented in support of the petition and found that they raised issues that were “not idle” and should be pursued in the appropriate forum. And ruled that each side to bear its own costs.

Things remain with the IEBC the time being.

What does Kenya’s High Court ruling on the civil society challenge to Uhuru and Ruto eligibility for election say about the state of Kenya’s judiciary?

The Nairobi media reporting is a bit garbled but the gist of things is that the Kenyan High Court (as opposed to the Court of Appeal or the Supreme Court) has dismissed a petition filed some months ago by civil society groups, including significantly the Kenyan Chapter of the International Commission of Jurists, challenging the eligibility of many of the candidates for President of Kenya on the basis of the “integrity” provisions of the new Kenyan Constitution.

Almost 13 months ago I posted that it was time for Kenya’s judicial system to answer the question posed regarding the application of these constitutional provisions to the candidacy of those facing confirmed charges from the International Criminal Court.  Unfortunately, even though the election has ended up being set for a delayed date, the Kenyan court system has still managed to let the clock seemingly run out without reaching any clarity or finality, such that the election is expected to proceed with the “Uhuruto” ticket on the ballot.

Without having a copy of an opinion yet, from the media reports, the High Court ruled that it did not have jurisdiction over the challenge because the constitution vests exclusive jurisdiction in the Supreme Court over challenges involving the nomination and election to the presidency and that further the jurisdiction of the Kenyan courts and ICC was concurrent and with the ICC case proceeding only the ICC could bar the indictees from running for office.

As an American rather than Kenyan lawyer, and having not read the opinion, I don’t want to go too far into the details here, but I would note that (1) Ruto as opposed to Uhuru is no longer running for president, so the practical question now for his eligibility is distinguishable; (2) the High Court has original jurisdiction to interpret the provisions of the constitution, which seems to me to clearly be the issue here–as opposed to a more ordinary nomination or election challenge which would seem to me to be a more plain way to interpret the various constitutional provisions as a whole.

Here is a long quote from the Daily Nation story “Jubilee, Cord plaud ruling on eligibility case”:

Mr Odinga on his part said he respected the ruling saying that the court had held that in matters relating to the presidential election, the Supreme Court had ‘exclusive and original jurisdiction.’

“I have repeatedly said that my main competitor should have the opportunity to face me in a free and fair election whose outcome is determined by the people of Kenya,” said Mr. Odinga upon hearing of the Court’s decision.

But Restore and Build Kenya (RBK) presidential candidate Prof James Ole Kiyiapi accused the judges of failing to give Kenyans directions on matters of integrity.

“By declaring that they lack jurisdiction, Kenyan courts have failed to give the country direction on matters of integrity as outlined in chapter six of the constitution,” he stated.

The five High court judges – Mbogholi Msagha, Luka Kimaru, George Kimondo, Pauline Nyamweya and Hellen Omondi – dismissed a petition filed by civil society groups challenging Mr Kenyatta and Mr Ruto;s suitability to run for the presidency and deputy presidency as they face serious crimes at the International Criminal Court (ICC).

The Judges ruled that despite the serious nature of the crimes facing Mr Kenyatta and Mr Ruto at the ICC, they are still presumed innocent until the contrary happens.

“It is common knowledge the two have been indicted but since Kenyan courts and the ICC are of concurrent jurisdiction, we cannot adjudicate over the same matter. Only the ICC can bar them to run for public office,” ruled the judges.

They ruled that the High Court had no jurisdiction to hear any petition relating to presidential candidates’ nomination.

So I tend to agree with Prof. Ole Kiyiapi that the High Court has ducked the issue and left a real lack of clarity as to the meaning of the constitution.  The problem is appeals and further proceedings are now unlikely to have time to be resolved before March 4.

Kenyan Court strikes Government’s action outlawing Mombasa Republican Council

 

Judicial independence is becoming serious stuff in Kenya.  A three-judge panel of the High Court sitting in Mombasa has ruled that Kenya’s executive branch acted unconstitutionally  in “banning” the secessionist Mombasa Republican Council.  As the decision was reported in the Daily Nation:

The judges advised the group to register as a political party to pursue its agenda through legal means.

And apparently alive to the fact that Kenyans may question the rationale behind their judgment, more so in the light of the group’s secession demands, the judges pointed out that secession was a weighty matter that could not be realised through the means the group was pursuing.

“There may be Kenyans who may disenchanted with the our decision. Some would see it as an endorsement to secession and dismembering of this country.

“To them we say: Secession can only be achieved by far-reaching amendment to the constitution,” the judges ruled.

“Secession is a political agenda. MRC is certainly not a trade union, welfare society or a debating society. It has all the attributes of a political movement,” the judges noted.

“If MRC regards this decision as carte blance to disorder or lawlessness, then they are on their own. The court cannot mute the respondents from exercising their constitutionally ordained obligation of ensuring security for all Kenyans. Should MRC cross the line, then the State, as always can invoke the law including prevention of criminal activities.”

Presumably the Government will appeal, but this would seem a fairly straightforward application of the Constitution.  Advocating for secession is obviously highly controversial–in just about any country, and particularly in Kenya and especially on the Coast, with war in Somalia, a refugee crisis and the specter of an upcoming election given a history of election-related violence.  Nonetheless, it is times like these that require constitutions and the rule of law to provide boundaries within which to have these debates peacefully.

It will certainly be interesting to see how this plays out in the national and regional election campaigns.  Maybe democracy assistance programs working on “party building” can take some of them to visit Parti Québécois?

 

Friday the 13th Ruling: No Kenyan Election Until 2013 Unless Gov’t Dissolved First says High Court

Here is the story from KBC:

A three  judge bench Friday ruled that the Independent Electoral and Boundaries Commission (IEBC) sets the date for the general election.

In a one hour ruling by constitutional court judges Isaac lenaola, David Majanja and Mumbi Ngugi, IEBC should set the election date 60 days after the expiry of the current parliament which is January 15,2013.

Going by the ruling, the general election is likely to be held in 2013. The judges who took time to read through the appeals by different petitioners said it was prudent for the IEBC to determine the date since it is the one bestowed with the mandate to conduct elections.

They ruled that the General Election can only be held in 2012 if President Kibaki and Prime Minister Raila Odinga agree, in writing, to dissolve the Grand Coalition Government. This would be 60 days after the Principals agree to terminate the National Accord that holds the coalition parties, PNU and ODM, together.

Deputy Prime Minister Uhuru Kenyatta says his KANU party will respect the court’s verdict.

Narck Kenya leader Martha Karua posted her immediate reaction on twitter saying she totally disagree’s with the court’s ruling.

She argues that the term of office must include the election period and that’s the interpretation world over.

“I totally disagree with the court’s ruling. Term of office must include the election period and that’s the interpretation world over.”

.  .  .  .

Sloppy or deliberately ambiguous work on the new Constitution strikes again.  The big picture here is that the Kenyan voters end up having foisted on them a “grand coalition” of all the major players from the last election until an election that is LATER rather than SOONER in the wake of the failure of the 2007 election.  Hopefully civil society, democracy activists and donors will use the extra time productively to push the political class further forward on the reforms required to implement the new Constitution and prepare for a better election.  No reason to be optimistic that extra time will help, but we can always hope>