All indications are that Museveni will return the favour initiated by Kenyatta, by providing mental, material and to a greater extent, military, support should need arise
…an election once held, is not to be treated in a light-hearted manner, and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing serious elements of uncertainty on the verdict already tendered by the electorate. An election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held…” – The Supreme Court of India in “Rahim Khursid v Khurshid Ahmed & Others  AIR 290, 1975 SCR (1) 643”
One of the unsuccessful candidates in the recently-concluded Ugandan presidential election John Patrick Amama Mbabazi is before the country’s Supreme Court to challenge the election of President Yoweri Kaguta Museveni. As we follow the matter, it is only natural for us to engage in discourse regarding the nature of election petitions, which are notoriously common here in Kenya. As any keen observer will attest, only a few of such petitions succeed. The purpose of this piece is to show how courts approach election petition matters with regards to irregularities or anomalies in election procedure.
There is consensus among courts world over that the primary consideration in an election petition is whether the will of the electorate has been affected by irregularities (if any). Lord Denning in the case of “Morgan and Others v Simpson and another  3 ALL E.R. 722, 728” stated thus with regard to irregularities: “…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 it did not affect the result...”
‘Spirit of the electorate’
Similarly, our main electoral legislation, the Election Act, states in Section 83: “No election shall be declared to be void by 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.”
But what exactly is the meaning of the clause “affect the result of the election”? Courts have held that it refers to the question of which person is elected, as opposed to the number of votes cast for each candidate. Therefore, if a consequence of irregularity is that a candidate would have polled more or less than what was recorded at the count, but the same candidate would still have been elected, the result would not have been affected.
The above position is amply illustrated in “Fitch v Stephenson and Others  EWHC 501(QB)”. In the case, the petitioner proved failure by election officials to count 45.8 per cent of votes cast. Nevertheless, the court declined to nullify the election, stating that the petitioner had failed to prove that the result would have been any different if not for the irregularity. The judges stated: “…the courts will strive to uphold an election as being substantially in accordance with the law, even where there have been serious breaches of the rules, or of the duties of the election official providing that the result of the elec-