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

Nairobi Law Monthly - - Review - NEWTON ARORI

…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 [1975] 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 [1974] 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 [2008] 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-

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