REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI PETITION NO. 4 OF 2013 BETWEEN

GLADWELL WATHONI OTIENO 1ST PETITIONER

ZAHID RAJAN .. 2ND PETITIONER AND AHMED ISSACK HASSAN . 1ST RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION .2ND RESPONDENT

UHURU MUIGAI KENYATTA 3RD RESPONDENT

WILLIAM SAMOEI RUTO

. 4TH RESPONDENT

Submission on behalf of the Katiba Institute as amicus curiae

Summary 1. The Amicus Curiae is a non-profit making and non-governmental organization registered under the laws of Kenya and dedicated to the faithful implementation of the Constitution (2010) and promotion of the principle of constitutionalism in Kenya. Within this framework this submission addresses the constitutional context of the presidential election petitions brought by Raila Odinga, by Gladwell Otieno and Zahid Rajan, and by other petitioners, and places before the Honourable Supreme Court certain constitutional and legal issues raised by those petitions. 2. The submission first underlines the great importance to the nation of free and fair elections, in the light of both the countrys past history, and of the Constitution. And it briefly adverts to the nature, and the centrality, of the role of the judiciary in the resolution of electoral disputes. The submission draws upon both local and foreign jurisprudence.

3. The submission stresses that election petitions have a dual function: they are intended to ensure that the will of the people is realised in the specific sense of their choice being respected, but also are intended to be a corrective to corrupt, improper and incompetent electoral practices including those by the electoral management body. 4. It summarises the legal framework for the jurisdiction of the Supreme Court in the resolution of disputes over presidential elections. A particular focus is s. 83 of the Elections Act, and questions arising from its interpretation. In short the submission suggests that (i) one interpretation is that the section mandates the court to declare an election void in certain conditions, (ii) that this will apply if there have been breaches of what the section calls the principles of the Constitution and the law, even if the actual result of the election is not affected. It discusses what the principles of the Constitution and the law are in relation to when a breach would lead to a declaration of invalidity. 5. The submission then turns to what must be established for a petition to succeed, including issues of burden and standard of proof. It shows that there is authority to the effect that the burden under s.83 may to some extent rest upon the 1 st and 2nd Respondents. And it discusses authority on the issue of the standard of proof, proposing that, with the possible exception of allegations that specified individuals have been guilty of criminal offences, the standard of proof is the civil standard of on balance of probabilities, which offers to the Court sufficient flexibility to meet the variety of allegations and the considerations of the public interest, while pointing out that some jurisdictions have conceptualised a standard of proof between beyond reasonable doubt and on balance of probabilities. 6. The meaning of all the votes cast, in relation to the issue of the requirement, on a firstround election, for a person to receive more than 50% of those votes in order to be declared Preside-elect is then addressed. The submission reviews the practice in some other countries, as well as some authorities, and then considers the issue in the light of the purposes of the constitutional provision, as well as its wording, and, on balance urges the Court that the purposes of the Constitution would be best served by an interpretation to the effect that all the votes cast include rejected votes. 7. The submission discusses briefly the possible remedies open to the Court, including raising the difficult issue of how could a fresh election be ordered with confidence that it would be conducted properly, at least if the basis for ordering such an election is satisfaction on the part of the Court that the election already held was marred by major failures of administration by the only body mandated to conduct elections. 8. Finally the issue of costs is addressed, and the possibility aired that the provision in the Elections Act requiring that costs follow the event is unconstitutional. There is a list of contents on the page that follows this.

Contents
Part I: Context and Constitutionalism........................................................................................ 3 Importance of the case................................................................................................................3 Foundations of the Constitution.................................................................................................3 Framework of elections..............................................................................................................3 System of voting.........................................................................................................................4 Political parties...........................................................................................................................4 The Independent Electoral and Boundaries Commission (IEBC)..............................................4 Observations on the electoral system under the Constitution.................................................... 5 The role of the judiciary.............................................................................................................5 Responsibilities of the Judiciary......................................................................................... 6 Considerations in resolving an election dispute.........................................................................6 Part II: Specific Issues................................................................................................................7 The Framework for Presidential Election Petitions................................................................... 7 When is an election invalidated?................................................................................................8 Is the section a mandate to the courts to declare an election void if it does not satisfy the condition or conditions for non-vitiation?................................................................8 Does or mean or or and?...................................................................................8 The Constitution and s. 83............................................................................................ 10 Can the court read or conjunctively?.......................................................................10 What are the principles of the Constitution and the law?.............................................10 What is meant by affect the result?...........................................................................11 Proving the result was affected.................................................................................................11 Burden of proof?............................................................................................................... 11 The Evidence Act...........................................................................................................12 Standard of proof.............................................................................................................. 13 Beyond reasonable doubt is not necessary...............................................................13 On balance of probabilities...........................................................................................14 Beyond reasonable doubt in cases alleging crime........................................................14 An intermediate standard?............................................................................................14 Flexible standard.......................................................................................................... 15 Rejected ballots........................................................................................................................ 15 What are the possible orders for the court to make?................................................................17 What is a fresh election?...............................................................................................18 Recount?....................................................................................................................... 18 The IEBC Dilemma..................................................................................................................19 Costs.........................................................................................................................................19 The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice................................................................ 20 And Articles 22 and 258 are intended to facilitate the use of the courts to ensure protection of rights and constitutionality more generally respectively. The former says,.....................20 It is submitted that these words apply not only to the deposit but to the rigidity of the costs rule. ......................................................................................................................................20

Part I: Context and Constitutionalism

Importance of the case
1. What is at stake in this case is much more than who will be the next president. The outcome of the case has profound implications for national unity, peace, public confidence in state institutions, trust in the judiciary, and indeed the viability of the Constitution itself. The decision of this august Court must be made within the broad framework of the values and procedures set out in the Constitution. Kenya has a troubled history of elections: manipulated by successive presidents, incitement to ethnic hatred, perpetration of massive violence, loss of lives, and violation of the basic principles of democracy and human rights. The immediate reason leading to the adoption of the current Constitution is itself the contested elections of 2007, in an attempt to give ourselves a framework for governance which reflects the aspirations of Kenyans for an honest and peaceful state, marked by national unity, integrity, participation and transparency, and based on fundamental principles of democracy and human rights. The Constitution has won the respect of Kenyans who look to it to hold the country together in peace and prosperity, and expect the nations problems to be resolved within its values. Kenyans have great confidence in, and hopes of the judiciary. The Constitution has assigned major responsibilities to it for the peaceful resolution of differences and disputes among the people. Kenyans now look to the Supreme Court to resolve the current crisis about the presidential elections fairly, in accordance with its highest principles, particularly that of free and fair elections, which is the bedrock of democracy and human rights.

Foundations of the Constitution

2. The foundations are laid out in the Preamble: a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law (para 5). The Constitution itself is a manifestation of the sovereignty of the people, both in its adoption and the mode of the exercise of that sovereignty (in accordance with this Constitution (Art. 2(1)). Every five years, in the exercise of that sovereignty, the nation goes to the polls for the people to choose their representatives to govern the country. Free and fair elections are central to the wellbeing of the country. Because of the troubled experience of elections in Kenya, the Constitution sets out in detail the principles and procedures for the conduct of electionsat greater length than any other constitution in the world.

Framework of elections
3. Kenya is a multi-party democracy based on national values and principles of governance set out in Article 10 (Art. 4). The values and principles include national unity, human rights, rule of law, democracy, participation of the people, good governance, integrity,

transparency, and accountability (Art. 10). These values and principles govern all aspects of the state, including the electoral process, particularly the conduct of the Independent Electoral and Boundaries Commission (IEBC). Many rights associated with free and fair elections (and democratic politics) are recognised (Art. 35, Access to information, Art. 36, Freedom of association, Art. 37, freedom of Association, demonstration, picketing and petition, and Art. 38, Political Rights). Article 38 says that every citizen is free to make political choices, including the right to form, or participate in forming, a political party and to engage in its affairs, and to campaign for a political party or cause (38(1)). Every citizen has the right to free, fair and regular elections based on universal franchise and the free expression of the will of electors for any effective public body (38(2)). Every adult citizen has the right, without unreasonable restrictions, to be registered as a voter, to vote by secret ballot, and to be a candidate for public office (38(3)). 4. Chapter 7 sets out the framework for elections (Representation of the People). It begins with General principles for the electoral system (Art. 81). These principles include universal suffrage based on the aspiration for fair representation and equality of vote; and (e) free and fair elections, which are (i) by secret ballot; (ii) free from violence, intimidation, improper influence or corruption; (iii) conducted by an independent body; (iv) transparent; and (v) administered in an impartial, neutral, efficient, accurate and accountable manner. 5. The amicus is aware that the majority of the Court in In The Matter of the Principle of Gender Representation in The National Assembly and The Senate [2012]eKLR held that clause (1)(b) of this Article was aspirational and does not impose an immediate duty. It is submitted that this approach cannot extend to clause (3) which lays down concrete and basic requirements for any election in a modern society, which must be immediately applicable, and is elaborated in later Articles. 6. Article 82 sets out the provisions for legislation by Parliament on elections (dealing, for example, with the drawing of electoral boundaries and the nomination of candidates). For the conduct of elections, the Article requires that legislation shall ensure that voting at every election is (a) (b) (c) (i) simple; transparent; and takes into the special needs of persons with disabilities; and

(ii) other persons or groups with special needs.

System of voting
7. Article 86 deals further with voting. The IEBC must ensure that (a) whatever voting system is used, the system is simple, accurate, verifiable, secure, accountable and transparent; (b) the votes are counted, tabulated and the results announced promptly by the presiding officer at each pooling station; (c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and (d) appropriate structures and mechanisms to eliminate electoral malpractices are put in place, including the safekeeping of election materials. Chapter 7 sets out the principles and mechanisms for ensuring adequate representation of women and marginalised groups (Art. 90) as well as for resolving electoral disputes (Art. 87) (to overcome some technical rules which prevented actions against important people for malpractices). [Other aspects of the electoral system, particularly on representation and membership of the executive and the legislature, are set out in chapters dealing with these institutions].

Political parties
8. The Constitution acknowledges the important role that political parties play in democracy and elections. It both facilitates and regulates the role and organisation of political parties (Arts. 91 and 92). For this purpose it sets out a number of principles and rules, including the promotion and upholding of national unity, abide by democratic principles of good governance, respect the right of all persons to participate in the political process, including minorities and marginalised groups, and promote the objects and principles of the Constitution and the rule of law. Political parties may not engage in intimidation or violence, or establish para-military force, or engage in bribery or other forms of corruption. These prescriptions are introduced given the past record of political parties which have violated important principles and practices of democracy, and have used ethnic appeals and bribery as the principal means to attract votes.

The Independent Electoral and Boundaries Commission (IEBC)

9. Importantly, Article 88 sets up the IEBC as an independent commission for the conduct of elections, including the registration of voters, regulating the process for the nomination of candidates, registration of candidates, the counting of the votes, voter education, facilitation of observation, monitoring and evaluation of elections, the regulation of the amount of money parties may spend for elections, and the development of a code of conduct for candidates and parties contesting elections. It is evident that the central role, and responsibility, for the lawful, efficient and fair conduct and supervision of the election is given to the IEBC. And that its tasks are defined in detail and with precision, which include supervision of the observance by political parties of the code of conduct and of the rules governing the nomination of candidates.

10. To get the full measure of the independence of the IEBC, we have to turn to chapter 15 (Commissions and Independent Offices). The Constitution places great importance on the role of independent commissions, for good governance, giving them functions too political or sensitive that they need to be insulated from the influence of the government, and giving some commissions or independent officers supervisory functions over the conduct of the government. Chapter 15 guarantees the independence, security and resources that are necessary for the commissions to discharge their responsibilities without fear or favour. Article 249 summarises the objectives of independent commissions as follows: (a) (b) (c) protect the sovereignty of the people; secure the observance by all State organs of democratic values and principles; and promote constitutionalism.

So that they are able to do so, Article 249(2) says that the commissions and holders of independent offices are: (a) (b) subject only this Constitution and the law; and are independent and not subject to direction or control by any person or authority.

And clause (3) gives them financial security.

Observations on the electoral system under the Constitution

11. The Constitution has such great detail on the objectives, principles and procedures for the election because of past practices under which there was little possibility of free and fair elections. The bureaucracy played an important role in ensuring the re-election of the president and his cronies. The electoral commission was notorious for its partiality and subservice to the president. The judiciary could not be counted to hear election petitions fairly, or at all. These defects were obvious to the Constitution of Kenya Review Commission (CKRC), which first made a number of proposals now in the Constitution. But the dangers of such irresponsible system of the administration of elections hit the country starkly after the 2007 election for which the Electoral Commission of Kenya (ECK) was held at least partially responsible. 12. A major investigation, after the violence subsided and in accordance with a peace agreement engineered by a Panel of Eminent Africans, was undertaken of the electoral system to identity its weaknesses and reform. The Kriegler Commission which undertook the investigation was extremely critical of the ECK and made a number of recommendations for the responsibilities and independence of an electoral commission (most of which were incorporated in the Constitution). Enormous resources have been made available to the IEBC. 13. It is therefore our submission that the Supreme Court should carefully scrutinise the conduct of the IEBC and hold it accountable for its responsibilities under the

Constitution. The critical issues we submit are not only the technical aspects of voting and tallying, but the integrity of the whole process. A process which does not respect the integrity of the process, with all its rules and practices for free, fair and transparent elections may cause even greater harm, including killings and displacements of people, than the actual outcome of the result of voting. We should also recognise that these rules and practices are enshrined in the Constitution because Kenyans considered that they are critical to fair and peaceful elections. 14. Like all state organs, the IEBC has to observe, respect, protect, promote and fulfil the rights and freedoms in the Bill of Rights, including of course electoral entitlements of citizens. 15. A purpose of the independence of the commissions and the adoption of principles of integrity, participation and transparency was to restore the confidence of Kenyans in state institutions which was destroyed over decades of authoritarian and unfair administration. The loss of trust in independent commissions, particularly the IEBC, would be enormously harmful to the country, undermining national unity and the legitimacy of the state. 16. Knowing the consequences of unfair elections or even suspicions of unfairness, the IEBC has a special responsibility to ensure scrupulous observance of all principles, rules and procedures. For example many cases of bribery were reported in the media, including the names of the bribe giver and the time and place. The IEBC was urged by several people to investigate and ensure the disqualification or punishment of the candidates who gave money, but it did nothing. Thus no steps have been taken by the IEBC to stop what is one of the worst features of electoral practice in Kenyawhich also has the effect of excluding good and capable people from competing for elected public office.

The role of the judiciary

17. Just as there is a history of the electoral commission, so is there of the judiciary. It begins with the CKRC. The CKRC realised at an early stage of its work that a fundamental political, social and economic reform was necessary for the peace and prosperity of the country. It was clear also that the establishment would resist a constitution which tried to make these fundamental reformsand that such resistance would be supported by the judiciary. It noted in its report, The judiciary rivals politicians and the police for the most criticised sector of Kenyan public society today. For ordinary Kenyans the issues of delay, expense and corruption are the most worrying. For lawyers there is concern about competence and lack of independence [of the judiciary] from government ( Peoples Choice (the Short Report of the Constitution of Kenya Review Commission : Sept. 2002, p. 52). Yet the CKRC was convinced that with a proper constitutional status and authority, an ethical judiciary could be powerful force for reforms, upholding the supremacy of the constitution and the rule of law. In order to be fair to existing judges as well as to seek advice on the future structure of the judiciary, the CKRC invited eminent judges from the Commonwealth (with a majority from Africa).

18. In its report, the Panel of Eminent Jurists said that it was shocked and dismayed by the widespread allegations of corruption in the Kenya Judiciary. While many of Kenya's judges continue to fulfil their judicial office faithfully to their judicial oath, public confidence in the independence and impartiality of the Judiciary has virtually collapsed. This in turn threatens the principle of the Rule of Law, the very foundation of all modern democracies. The Judiciary must be the one bastion where the citizen may go to challenge the arbitrary or oppressive actions of the state. It must be the safe haven where the most impoverished or abused citizen may find support for his or her legal rights when they conflict with those of the rich and powerful in society. A court of law is the forum where corrupt police officers and government officials may be brought in order to condemn their misconduct and impose punishment for their abuse of public trust. Where justice is not dispensed with impartiality, there is no hope for citizens to be treated with objectivity, fairness and honesty by other institutions. The maintenance of judicial independence and impartiality is the very reason why judges are given such a privileged position in society. It is why they have security of tenure in office. It is why they are given guarantees of financial independence. It is why they are treated with deference and respect in their courtrooms. As the High Court has stated in the Gachiengocase[1]: A judge occupies an enviable position in society. He is enveloped by an aura of dignity. He is always on a pedestal. That position has to be jealously guarded. Where corruption occurs in the Judiciary, it is the worst form of abuse of public trust since honesty, integrity and fairness are the features that entice citizens to such recourse in the courts, only to be ambushed. 19. On the recommendations of the Panel, the CKRC proposed major restructuring of the judiciary, primarily with a view to increasing its independence and competence. Most of the recommendations are now part of the new Constitution. The principal features are the complete independence of the judiciary, a new Supreme Court, financial autonomy, appointments effectively entirely by the Judicial Service Commission (except for the Chief Justice and the Deputy Chief Justice, whose nomination requires parliamentary approval), a broad jurisdiction to safeguard and interpret the Constitution, and easy access to courts on constitutional issue, and (in Art. 159), some fundamental principles of justice. Responsibilities of the Judiciary 20. The broad and critical role of the judiciary is clear from several provisions. These are identified below briefly, to indicate the overarching duty of the judiciary to ensure the observance of the Constitution.
1Gachiengo v Kathuria 2000 eKLR.

a. Courts have the major role in maintaining the supremacy of the Constitution (for example Arts. 2,(1), 22, 165 (3), 258) b. For this purpose, the Constitution strengthens the independence of the judiciary by a more independent process of appointments through a more representative Judicial Service Commission (Arts. 160, 166-168, 171-2) and through more independent and secure financial resources (Art. 173). c. Ample opportunities are provided for access to courts. All human rights (including socio-economic) are justiciable and therefore within the jurisdiction of courts. Every person has the right to institute court proceedings claiming that a right of fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened (Art. 22(1)) or any provision of the Constitution (Art. 158). d. Liberal rules of standing are adopted, to the extent that any person, acting in the public interest can institute proceedings (Art. 22(2)(c)). The Chief Justice is required to make rules to ensure that (a) the rights of standing are fully facilitated (Art. 22(3)(a)); (b) formalities relating to the proceedings are kept to a minimum, and if necessary, entertain proceedings on the basis of informal documentation (Art. 22(3) (b)); (c) no fee may be charged for commencing proceedings (Art. 22(3)(c)); and an organisation or individual with particular expertise may appear as a friend of the court with its leave (Art. 22(3)(e)). The liberal rules of standing and the facilitation of litigation in respect of any provision of the constitution are set out in Article 258. These rules provide the foundation for Public Interest Litigation, an important strategy for safeguarding the Constitution. e. Along with other State organs, the judiciary has a fundamental duty to observe, respect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights (Art. 21(a)). The judiciary, as other state organs, have the duty to address the needs of the vulnerable groups within society, including women, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities (21(3)). f. Courts have to develop the law where law does not reflect the protection of a right (Art. 20(3)) g. The Supreme Court is given the jurisdiction to give advisory opinions at the request of the national government, any State organ, or the county government (Art. 163(6)) on matters related to devolution. h. The Constitution sets guidelines for courts in the exercise of their authority. These include that Justice shall be done to all, irrespective of status (Art. 159(2)). Other principle is that Justice shall be administered without undue regard to procedural technicalities and Justice shall not be delayed. The administration of justice must be directed to the promotion of the purposes and principles of the constitution. i. There is protection of the right to fair administrative action (Art. 47) which gives the courts a specific role in respect of administrative law and practice. It grants

the rights of due process, including the right to counsel in criminal trial and to free legal representation if substantial justice would result otherwise (Art. 50 (g) and (h)). j. Overarching these provisions are the guidelines for the interpretation of the Constitution (Art. 259(1)): in a manner that (a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Right; (c) permits the development of the law; and (d) contributes to good governance. 21. This analysis shows that the Constitution was designed to give the judiciary a large and critical role in the protection, promotion and development of its principles and values. The guidelines for the interpretation of the Constitution indicate clearly that it is responsible for a purposive rather than a formal or technical interpretation. 22. This approach to the interpretation of the new Constitution was expressed by Justice Ojwang in Luka Kitumbi& Eight Others v. Commissioner of Mines and Geology & Another, (Mombasa HCCC No. 190 of 2010), thus: I take judicial notice that the Constitution of Kenya, 2010 is a unique governance charter, quite a departure from the two [1963 and 1969] earlier Constitutions of the post-Independence period. Whereas the earlier Constitutions were essentially programme documents for regulating governance arrangements, in a manner encapsulating the dominant political theme of centralized (Presidential) authority, the new Constitution not only departs from that scheme, but also lays a foundation for values and principles that must imbue public decision-making, and especially the adjudication of disputes by the Judiciary. It will not be possible, I think, for the Judiciary to determine causes such as the instant one, without beginning from the pillars erected by the Constitution of Kenya, 2010. 23. People throughout the country are pleased that the dispute about the elections would be resolved by the Supreme Court. They have confidence in its impartiality and competence. Justice Ojwang has explained convincingly why the public should have confidence in judicial impartiality and the transparency and effectiveness of its ethos and procedure in a lecture in August 2011,2 as follows: Judicialism is the philosophy that the political and governmental edifice in a country is optimally designed only when its central pillar is the judicial process. The judicial process is, in this case, regarded as a friendly, and people-focused mechanism, because it does not arbitrarily exclude anyone, so long as there is due compliance with rules of locus standi; it does not discriminate between the weak and the strong; it has expedient and objectively-designed procedures for the conduct of proceedings; it is a listening and hearing mechanism; it is sensitive to questions of merit; it resolves all justiciable disputes, including those entailing conflicts within the
2 Judicial Ethics And Judges conduct: The Complaints Mechanism, paper presented at the Annual Kenya Judges Colloquium, Mombasa, August 14 19, 2011

political establishment; it has a definite claim to legitimacy; it hands down its decisions with finality; it has an appellate structure for self-rectification, or affirmation; it has good cause to demand obedience, of all and sundry. The Judiciary, thus, is the classical instrument of institutionalized governance founded on merit and principle: this is the justification for the doctrine of judicialism. The governance set-up under the Constitution of Kenya, 2010 is one of constitutionalism, and, ipso facto, a system in which judicialism is a central pillar.

Considerations in resolving an election dispute

24. The Constitution is the supreme law (and therefore its framework of elections is superior to laws or practices on elections) (Art. 2(1)). Everyone, including political parties and the IEBC are bound by it (Art. 3(1)). This Honourable Court must take cognisance of the troubled history of the country, the attrition of the rule of law, the pervasive corruption that characterises most state institutions, and personal and group suffering that many have suffered as a result of violence engineered by the state and political parties. The Constitution aims to eliminate this state of affairs by the adoption of constitutional values and principles and by giving the judiciary wide jurisdiction and powers to change the political culture of state institutions. 25. It is now generally recognised that a countrys judiciary has a major responsibility for the preservation of democracy, which defines its role in resolving electoral disputes. The Supreme Court of Namibia has this to say in the Republic Party case ( Republican Party of Namibia v Electoral Commission of Namibia Case No.: A 387/2005): Role of elections The right accorded to people on the basis of equal and universal adult suffrage to freely assert their political will in elections regularly held and fairly conducted is a fundamental and immutable premise for the legitimacy of government in any representative democracy. It is by secret ballot in elections otherwise transparently and accountably conducted that the socio-political will of individuals and, ultimately, that of all enfranchised citizens as a political collective, is transformed into representative government: a government of the people, by the people, for the people. It is through the electoral process that policies of governance are shaped and endorsed or rejected; that political representation in constitutional structures of governance is reaffirmed or rearranged and that the will of the people is demonstratively expressed and credibly ascertained. This obligation casts an onerous responsibility on the Courts to scrupulously maintain and enforce the principle of a representative democracy in our constitutional society and to jealously guard against any infringement or erosion thereof.

If the public get the impression that those put in charge of it can with impunity disregard the rules that govern elections, or that their votes may very well be ignored because someone in charge of the process feels it counts for nothing, voter apathy will set in and seriously undermine the legitimacy of those chosen to run the affairs of the nation. The right to participate in the affairs of State through elected representatives has been denied for the vast majority of Namibians for too long. That right has been hard won through the sacrifices and endeavours of many. The same can be said of Kenya. 26. The object of the current action is in part to maintain the constitutional standards. In another Namibian case, (Rally for Democracy and Progress vElectoral Commission of Namibia (Case No. SA 12/2011) [2012] NASC 21) the appeal court quoted from the first instance court: We want to extend a clear warning though that if and when circumstances justify doing so, the Court will set aside an election whatever the cost to the public finances in doing so. That is what the Constitution demands: cost implications of setting aside an election must never become the ruse for a corrupt and fraudulent election, or one conducted in breach of the principles contained in Part V of the (Act). And itself continued: We endorse this view. This is also the approach which this Court must apply to the adjudication of the disputes before us. We need not be reminded that democracy in this country was attained through great sacrifice and suffering. The price thereof cannot be measured in currency and we cannot - and shall not - allow it to be surrendered or compromised for the sake thereof. This case falls to be adjudicated on proven facts and established principles of law only not on the basis of economic or party-political considerations or conveniences. If, 'by reason of want of qualification, disqualification, corrupt and illegal practice, irregularity or by reason of any other cause whatsoever,' the Court concludes that the election or a return thereof was undue; that a person or persons was/were not duly elected; that another person or persons should be declared duly elected or, for that matter, that no person was or is entitled to be declared duly elected- as the case may be - the Court is obliged to grant appropriate relief under the Constitution and the Act to meet the specific complaint(s) established. Although the specific causes for election complaints enumerated in s 109 contemplate different methods of illegal interference with or manipulation of an election and may conveniently be considered as different manifestations of the wider concept of 'electoral fraud, 'the phrase 'or by reason of any other cause whatsoever' in the section goes further: the view we take is that it also includes mistakes or non-compliance with the provisions of Part V of the Act as contemplated in s 95 (which may not always be accompanied by an illegal intent or improper motive) if it appears to the Court

that, as a result, the election was not conducted in accordance with the principles laid down in that Part. And in the same countrys Republican Party case (above) the Court said, It will be unfortunate if the people responsible for the lapses are allowed to participate in the conduct of elections and to unnecessarily put the country through the same controversy and suspicion that had characterised the aftermath of the 2009 (National Assembly) election. It will be a sad day indeed for this fledgling democracy if, after this verdict, those who manage elections think that they have been completely vindicated, and therefore to continue with business as usual.

Part II: Specific Issues

The Framework for Presidential Election Petitions
The Constitution provides that a petition to challenge the election of the President-elect is within the exclusive jurisdiction of the Supreme Court (Article 140). The Court itself has held that an election is a process and not just the events of polling day. In In The Matter of the Principle of Gender Representation in The National Assembly and The Senate [2012]eKLRthe Court said (majority view but unanimous on this point), [99] Article 140 is silent on the mode of resolving such dispute as may arise in the course of ascertaining the two top candidates to proceed to the fresh Presidential elections. Such a dispute could, for instance, relate to the votetallying process: because the return is alleged to be invalid, or some related matter. Or one of the two candidates could be claiming to have fully met the requirement for being declared President-elect [Article 138(4)] and so there is no need to go to fresh election. If the return for the first round of Presidential election is disputed, is it tenable that the second-round, fresh election can be held? It would not be fair and this would aggrieve the complainant, apart from undermining the legitimacy of the electoral process. Clearly, this Court must stand on the side of fairness, legitimacy and constitutionality. [100] It is clear to us, in unanimity, that there are potential disputes from Presidential elections other than those expressly mentioned in Article 140 of the Constitution. A Presidential election, much like other elected-assembly elections, is not lodged in a single event; it is, in effect, a process set in a plurality of stages. Article 137 of the Constitution provides for qualifications and disqualifications for election as President and this touches on the tasks of agencies such as political parties which deal with early stages of nomination; it touches also on election management by the Independent Electoral and Boundaries Commission (IEBC). Therefore, outside the framework of the events of the day of Presidential elections, there may well be a contested question falling within the terms of the statute of elections, or of political parties. Yet still, the dispute would still have clear bearing on the conduct of the Presidential election.

[101] Does the entire question concerning Presidential elections belong to the Supreme Courts jurisdiction? Or is the Supreme Courts power limited by the express language of Article 140 of the Constitution? An analogy may be drawn with other categories of elections; Article 87(2), on electoral disputes, [102] Besides, a reading of Article 87(2) alongside Article 163(3) suggests, as we perceive it, that the Supreme Court was intended to adjudicate upon all such disputes as would arise from the Presidential election. We find no reason to presume that the framers of the Constitution intended that the Supreme Court should exercise original jurisdiction only in respect of a specific element, namely, disputes arising after the election while excluding those disputes which might arise during the conduct of election. 27. It is respectfully submitted that the Court has the jurisdiction to pronounce upon the entire range of issues on the management of the elections that impinge upon thepresidential election. 28. We would also observe that, far from being tangential to the issues before the court, the right to make political choices recognised in Article 38, is a very relevant part of the constitutional context. That Article recognises not only the right to vote and to stand but the right of every citizen that there should be free fair and regular elections; and it is the duty of the IEBC, under Article 88(5)3 read with among others Article 21(1)4 to fulfil this right. 29. The Elections Act 2011 contains a limited range of provisions on election petitions. These are supplemented by Courts own Rules for Presidential Petitions and otherRules. Certain of the provisions will be adverted to at relevant points in this submission.

When is an election invalidated?

30. One of the relevant provisions of the law is s. 83 of the Elections Act 2011: Non-compliance with the law. 83. 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 (emphasis added). 31. The submission of the amicus is to the following effect: that a possible reading of this provision is: An election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that either

3The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation. 4It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.

(i) (ii)

the election was not conducted in accordance with the principles laid down in the Constitution and in written law or (ii) that the non-compliance affected the result of the election.

32. This provision is ultimately derived from the English Ballot Act 1872 which read: "No election shall be declared invalid by reason of a non-compliance with the rules contained in Schedule 1 to this Act, or any mistake in the use of the forms in Schedule 2 to this Act, if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election." But even in the National Assembly and Presidential Elections Act, Cap. 11, repealed by the current Act, it was similar to the current provision. It read: 28. No election shall be declared to be void by reason of a 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 that written law, or that the non-compliance did not affect the result of the election. 33. There are several problems with the Kenyan provision, which are addressed below. Firstly: when it says that an election will not be vitiated in certain circumstances, is it to be read as saying if the requirements for non-vitiation are not satisfied the election must be vitiated? The second issue relates to the requirements for non-vitiation, which, it will be noted, are separate and not cumulative they are separated by or (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). However, it is submitted that reading or as or produces an absurd result: a court could decide not to declare an election void even though the failures to comply with the law had affected the result provided they could say that it was conducted in accordance with the principles laid down in the Constitution or the relevant law. Thirdly: what is meant by the principles laid down in the Constitution or the relevant law.Finally: what is meant by the result of the election? Is the section a mandate to the courts to declare an election void if it does not satisfy the condition or conditions for non-vitiation? 34. This issue was addressed by the English Court of Appeal in Morgan v Simpson [1975] Q.B. 15, [1974] 3 All ER 722, a case that concerned a local government election (the language had also changed a little from the Ballot Act). Lord Denning said, That section is expressed in the negative. It says when an election is not to be declared invalid. The question of law in this case is whether it should be transformed into the positive so as to show when an election is to be declared invalid. So that it would run:

"A local government election shall be declared invalid (by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the local election rules) if it appears to the tribunal having cognisance of the question that the election was not so conducted as to be substantially in accordance with the law as to elections or that the act or omission did affect the result." Lord Denning, and Stephenson LJ, held that the answer to answer to his question was yes.That decision has been accepted as representing the law in the recent case of Fitch v Stevenson ([2008] EWHC 501 (QB)). 35. In the Kenyan context there is an additional consideration: the Elections Act 2011 has no other provision specifying the consequence of failures in the management of elections. Does or mean or or and? 36. Stephenson and Lawton LJJ wrestled in Morganwith what has evidently been confusing drafting: specially the use of the word and. The former said, We are not required to read the conjunction "and" disjunctively if we are to give effect to the intention of Parliament as expressed in all the provisions including the positive requirements both of the Act of 1949 and of the Act of 1872 that either a substantial breach of the law or a breach which affects the result will enable and require a court to declare an election void. For the negative form of the section provides that both substantial compliance with the law and no effect upon the result are required in conjunction to save breaches of duty or of the rules from avoiding an election as is pointed out in the judgments of Lord Denning M.R. and Lawton L.J (p. 167) (emphasis added). 37. It seems that perhaps the drafters of the National Assembly and Presidential Elections Act also had problems with the and and or, 5 and it seems probable that there was no intention to change the meaning. 38. Lord Dennings summary of the effect of the English provision has been quoted in numerous Kenyan cases6: 1. 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
5In Mbogori v Kengethe (2008) 1 KLR (EP) 168 (decided 1976), the High Court cited Morgan v Simpson but, with respect, misunderstood it to say that an election was vitiated if either it 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 or 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 affect the result of the election. And they said that Lord Dennings interpretation of the provision read and disjunctively (p. 174) thus as being the same as the Kenyan provision. Unfortunately the court reached this, with respect, wholly inaccurate conclusion by omitting the word not: Lord Denning had said provided that it did not affect the result. 6Including Murgor v Ingonga (2008) 1 KLR (EP) 191 (decided 1980) at p. 202-3.

whether the result was affected or not. That is shown by the Hackney case, 2 O'M. & H. 77, where two out of 19 polling stations were closed all day, and 5,000 voters were unable to vote. 2. 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. That is shown by the Islington case, 17 T.L.R. 210, where 14 ballot papers were issued after 8pm. 3. But, even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls and it did affect the result- then the election is vitiated. That is shown by Gunn v. Sharpe[1974] Q.B. 808, where the mistake in not stamping 102 ballot papers did affect the result." (Underlining emphasis added) 39. The Kenyan court in Murgor v Ingongawent on to say, In our view the second of the above principles applies, that is the election as conducted substantially in accordance with the law, and the breach of the rules did not affect the result of the election. 40. In other words the court treated the Kenyan provision as if it was the same as the English one and required both elements to be present for the election not to be vitiated. The court showed no sign that it was so reading the statute; on fact it said it was similar to the English Act (p. 202). It is submitted that this was not surprising, if a little careless: the court read it as having the only sensible meaning. 41. And in AyubJumaMwakwesi v MwakwereChirau Ali & 2 others [2010] eKLR Ibrahim J (as he then was) said, While applying provisions of English statutes, the court of appeal in MORGAN & OTHERS V- SIMPSON & ANOTHER (1974) 3 AII E.R. 722 laid down certain principles in relation to election petitions. They held: An election court was required to declare an election invalid (a) If the irregularities in the conduct of the election had been such that it could not be said that the election had been so conducted as to be substantially in accordance with the law as to election, (b) If the irregularities had affected the result. Accordingly where breaches of the election rules although trivial had affected the result, that by itself was enough to compel the court to declare the election void even though it had been conducted substantially in accordance with the law as to elections. Conversely, if the election had been conducted so badly that it was not substantially in accordance with the election law it was vitiated irrespective of whether or not the result of election had been affected.

 I am persuaded by the said principles in interpreting Section 28 of the National Assembly and Presidential Elections. 42. In Manson OyongoNyamweya v James Omingo Magara & 2 others [2009] eKLR(Magara case) the predecessor of s. 83 was applied as though it said and. Musinga J did not base his decision to declare the election void upon the issue of whether the result was affected but: considering all the glaring anomalies and taking into account all the incidents of non-compliance with mandatory and important provisions of the law as highlighted herein, I have come to the conclusion that the election was not transparent, free and fair. Consequently, it is declared null and void. He also said, The court has to consider whether the grounds as raised in the petition sufficiently challenge the entire electoral process and lead to a conclusion that the process was not transparent, free and fair. It is not just a question of who got more votes than the other. It cannot be said that the end justifies the means. In a democratic election the means by which a winner is declared plays a very important role. The votes must be verifiable by the paper trail left behind, it must be demonstrated that there existed favourable circumstances for a fair election and that no party was prejudiced by an act or omission of an election official. His decision was upheld by the Court of Appeal (Omolo and Tunoi JJA, Githinji JA dissenting). The Constitution and s. 83 43. It is submitted that the passage of the new Constitution, with its stress on principles, including those of transparency, participation, and systems that are accurate, verifiable, secure, accountable and transparent also throws new light on s. 83 of the Elections Act and its implications. 44. One of the purposes of this section was surely to act as a guarantee of properly conducted elections by providing that in cases of sufficiently egregious cases an election could be declared void even if in a sense no injustice had been done: the person chosen by the electorate had in fact been elected. 45. Whereas the previous Act spoke of principles laid down in that written law s. 83 speaks of principles of the Constitution as well. The Court is obliged, in exercising judicial authority (which is not restricted to interpreting the Constitution) to protect and promote the purposes of the Constitution. S. 83 of the Act does reflect the overarching significance of the Constitution: Thus, it is submitted, in interpreting s.83 this imperative also suggests that the sense urged in this submission should be adopted.

Can the court read or conjunctively? 46. It is submitted that if to read or as meaning or produces an absurd result, as it is suggested is the case with regard to s. 8 of the Elections Act, the court is free to read or as and. Indeed the amicus would go so far as to say such a reading is inevitable. In the Nigerian Supreme Court Uwaifo JSC said (Victor ManyoNdoma-Egba v. NnamekeChikwukeluoChukwuogor&Ors. (2004) LPELR-SC.106/1998 (2004) 2 S.C. (Pt I) 107) In ordinary usage, the word "or" is disjunctive and "and" is conjunctive. But it is conceded that there are situations which would make it necessary to read "and" in place of "or", and vice versa. This may occur in order to carry out the intention of the legislature. See Maxwell on the Interpretation of Statutes, 12th ed., pages 232 234. Instances can be found in such cases as John G. Stein & Co. Ltd. v. O 'Hanlon (1965) AC 890; R v. Oakes (1959) 2 QB 350; and Re Mills (1967) 1 WLR 580. Such interpretation may be quite useful in order to avoid absurd or impracticable results. What are the principles of the Constitution and the law? 47. S.83 draws a distinction between the provisions of the law and the principles of the Constitution and the law. Cases have illustrated the effect of the Act (in other jurisdictions as well as this): in Morgan v Simpson the failure of compliance was not stamping 44 ballot papers thus leading to their being rejected. Yet the court held that the election was held substantially in accordance with the law. In the relevant (English) legislation the word principles had disappeared, but it is clear from the judgments that originally the situation was that a breach of rules in the schedules might not vitiate the election if the principles in the body of the Act are observed. 48. In the absence of such a clear distinction between schedules and body of the Act as was in the 1872 Ballot Act, s. 83 is not very clear as to the distinction between law and principles. However, it is suggested that the approach of Morgan v Simpson, distinguishing between minor specific infractions and substantial compliance with the law is appropriate. It should be stressed that no trivial departure would attract such a drastic remedy under the head of failing to comply with principles. In that case Stephenson LJ said, For an election to be conducted substantially in accordance with that law there must be a real election by ballot and no such substantial departure from the procedure laid down by Parliament as to make the ordinary man condemn the election as a sham or a travesty of an election by ballot. Instances of such a substantial departure would be allowing voters' to vote for a person who was not in fact a candidate or refusing to accept a qualified candidate on some illegal ground or disfranchising a substantial proportion of qualified voters. 49. The English case of Islington West Division Case, Medhurst v Lough and Gasquet (1901) 5 O'M & H 120, 17 TLR 210, 230 held7:
7This case does not seem to be available in full in electronic sources.

An election ought not to be held void by reason of transgressions of the law committed without any corrupt motive by the returning officer or his subordinates in the conduct of the election, where the court is satisfied that the election was, notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election, ie the success of the one candidate over the other, was not, and could not have been, affected by those transgressions. If, on the other hand, the transgressions of the law by the officials being admitted, the court sees that the effect of the transgressions was such that the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether these transgressions may not have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections, the court is then bound to declare the election void. It appears to us that this is the view of the law which has generally been recognised, and acted upon, by the tribunals which have dealt with election matters (Kennedy J) (emphasis added). 50. In the case of the Constitution there are in fact principles that guide the work of the IEBC, set out in Articles 81 and 86 especially. If the 2nd Respondent did not run an election that satisfied those principles, which is the allegation of some at least of the petitioners before the Court, s. 83, read as it has been read by Kenyan courts and as it is submitted here it ought to be read, mandates that it should be set aside. 51. In the Magara case (above), Musinga J held that the election had not been transparent, free and fair, all principles of the Constitution and the law. 52. The facts in Magara do indicate the sort of case in which it is submitted, it is appropriate, indeed, inevitable, that an election be declared void. The petitioner had made a very large number of allegations, set out in the judgment. And when a recount took place, ordered by the court, many irregularities were revealed. As Omolo JA said in the Court of Appeal, The scrutiny and recount of the votes by the learned Judge disclosed numerous irregularities, among them unsigned and, therefore, unauthenticated Forms 16A, three missing ballot boxes, broken ballot seals and many others set out in the learned Judges judgment. 53. In Uganda, in MusinguziGaruga James v AmamaMbabazi and Anor (Election Petition No. HCT-05-CV-EPA-0003 of 2001) the judge addressed the issue of what are the principles, and said, 272. All learned counsel who addressed me on this issue agreed that the principles laid down in the provisions of the Parliamentary Elections Act, 2001 may be summarised in the following words of Chief Justice B Odoki in Besigye v MuseveniYoweriKaguta and Anor, Supreme Election Petition No.1 of 2001 (when he said, in reference to Presidential Elections and the

Presidential Elections Act), To ensure that elections are free and fair there should be sufficient time given for all stages of the elections, nominations, campaigns, voting and counting of votes. Candidates should not be deprived of their right to stand for elections, and the citizens to vote for candidates of their choice through unfair manipulation of the process by electoral officials. There must be a levelling of the ground so that the incumbents or government ministers and officials do not have an unfair advantage. The entire election process should have an atmosphere free of intimidation, bribery, violence, coercion or anything intended to subvert the will of the people. The election procedures should guarantee the secrecy of the ballot, the accuracy of counting and the announcement of results in a timely manner. Election Law and guidelines for those participating in elections should be made and published in good time. Fairness and transparency must be adhered to in all stages of the electoral process. Those who commit electoral offences or otherwise subvert the electoral process should be subjected to severe sanctions. The Electoral Commission must consider and determine election disputes speedily and fairly. He observed that this was said in the context of a presidential election petition. 54. In the Namibian Republican Party case (above), the court asked: Can it be said that, notwithstanding the absence of accounts and verification affecting so many ballot papers, the election was nevertheless conducted in accordance with the principles contained in part V of the Act? We think not. The purpose of the process of accounting and verification in terms of sections 85(3) and 87(2) lies at the heart of the principles of transparency and accountability built into the election process under Part V of the Act. Without that, the door would be wide open for stuffing and election fraud of virtually unlimited proportions and, instead of being one of the greatest aids in the attainment of a democratic dispensation, elections may become its greatest hurdle. There are, in our view, few enemies more destructive of the democratic values in any society than manipulated elections masquerading as ones freely and fairly conducted. It is for these reasons that we have deemed it appropriate to take a serious view on the failure to comply with the statutory requirements of transparency, accountability and verification. What is meant by affect the result? 55. It is submitted that the most obvious meaning of this is not how many votes each candidate received, but in most instances who won. In Fitch v Stevenson [2008] EWHC 501 (QB) (para. 40) the High Court of England and Wales sitting with two judges, quoted with approval Marshall v Gibson, (Divisional Court, 14th December 1995) It is clear now that the result means the question which person or persons are elected as distinct from the number of votes cast for each persons: see In re Islington West Division; Medhurst v. Lough (1901) 17 TLR 210 [see above].

Thus if the consequence of a breach of the Rules is that one or more of the candidates would have polled more or less votes than were recorded at the count, but the same candidate or candidates would still have been elected, the result will not have been affected and the election can only be declared invalid if it appears to the Court that the election was not so conducted as to be substantially in accordance with the law as to elections. 56. In the case before thisHonourable Court the issue of who won, in the sense of who got the largest number of votes, is not the only issue because of the requirement that in order to be declared President elect on the first round a person must obtain more than 50% of all the votes cast. 57. Ibrahim J in the Makwere case (above) said, In the case of MBOWE V- ELIUFOO (1967) E.A. 240, the Election Court in Tanzania interpreted the meaning of affected the result The court said:affected result means not only the result in the sense that a certain candidate won and another one candidate lost. The result may be said to be affected if, after making adjustments for the effect of proved irregularities the contest seems much closer than it appeared to be when first determined. (emphasis added). 58. In ordinary parlance all the votes received are part of the result. In most elections, especially first past the post, the only result that matters is who won. But in a multimember proportional representation election, especially a list system, the vote received by every party might be relevant. The percentage received by every party might affect how many seats in the elected body every party receives. 59. It is suggested that the results achieved by the candidates other than the two frontrunners may also be within the result, for some purposes (see below).

Proving the result was affected

60. Apart from the formal issues of burden and standard of proof, how do the courts deal with the fact that necessarily the question of whether the result was affected can rarely be definitely resolved? If the allegation was that certain voters could not vote, how can we know how they would have voted and therefore what the result would have been? 61. If the number unable to vote was not enough to affect the result, the courts have no problem. Such a case was the Islington case cited by Lord Denning (above). But if the number was, hypothetically at least, large enough to make a difference the courts will usually assume that they would have made a difference. 62. The following extract from Halsburys Laws of England summarises a few of the cases in that country: 6 Morgan v Simpson [1975] QB 151, [1974] 3 All ER 722, CA (44 ballot papers not stamped with official mark; result affected);and see Gunn v Sharpe [1974] QB 808, [1974] 2 All ER 1058, DC (102 unstamped ballot papers;

result affected); Considine v Didrichsen[2004] EWHC 2711 (QB), [2004] All ER (D) 365 (Nov) (unascertained number of electors failed to receive proper ballotpapers at an all-postal ballot; result presumed to be affected where winning margin was only seven votes). Islington, West Division Case (1901) 5 O'M & H 120 (14 ballot papers issued after 8 pm; result of election not affected). 7 Morgan v Simpson [1975] QB 151 at 164, [1974] 3 All ER 722 at 728, CA, per Lord Denning MR, applying Hackney Case (1874) 2 O'M & H 77 (two polling stations closed all day; approximately 5,000 voters unable to vote). Intimidation that prevents free votingalso avoids an election: Dudley Case (1874) 2 O'M & H 115 (riot in town). Burden of proof? 63. In accordance with normal rules, the burden of proof is generally on the petitioner. However, according to authorities, there are some situations in which the onus is on the respondent at least to some extent. 64. Section 83 of the Elections Act, based as seen earlier, on English provisions, has its counterparts in other Commonwealth jurisdictions, including Namibia. In a case before the High Court of Namibia (Republican Party of Namibia v Electoral Commission of Namibia CASE NO.: A 387/2005), the court considered two provisions of that countrys electoral legislation: S. 95 of the Electoral Act "No election shall be set aside by the Court by reason of any mistake or non-compliance with the provisions of this Part if it appears to that Court that the election was conducted in accordance with the principles laid down therein and that such mistake or noncompliance did not affect the result of that election. S. 116(4) "No election referred to in section 109 shall be set aside by the court by reason of want of qualification, disqualification, corrupt and illegal practice, irregularity or by reason of any other cause if it appears to the court that any such want of qualification disqualification, corrupt and illegal practice, irregularity or other cause did not affect the result of that election.

It will be observed that s. 95 is similar to the Kenyan provision (but retains the conjunctive and from the English original). The court drew a distinction between these two provisions: s.116(4), it thought, contemplated failures that were not the fault of the Electoral Commission. S. 95 however, was different, and the court said, The Legislature entrusted the first respondent with the power to direct, supervise and control every step of the elections either directly or indirectly (through the Director and the election officials appointed for that purpose). But the corollary of that power is the duty and responsibility to ensure compliance with the provisions of that Part of the Act. The consequences of

any mistake under or non-compliance with that Part was afforded special attention and treatment by the Legislature in s 95 of the Act. The court then reviewed the history of the provisions and quoted a South African court in Putter v Tighy, (1949 (2) SA 400 (A), 410) Passing to the onus of proof under sec. 91, it seems to me clear that, once it has been shown by the petitioner that a non-compliance with the provisions of Chapter III has occurred, the onus lies on the respondent to prove that both conditions mentioned in the curative section have been satisfied." (emphasis added) 65. The Namibian court went on to say, Given the long line of authorities interpreting other similarly worded enactments over more than a century in other jurisdictions, the inclusion of s 95 in part V of the Act is not without significance and purpose: it is intended to maintain official accountability for due compliance with the statutory requirements of the election mechanisms and procedures whilst, at the same time, maintaining resistance against invalidation on unsubstantial grounds. We are satisfied that the same interpretation given in other jurisdictions to identical or materially the same provisions holds true as far as onus is concerned in respect of s 95 of the Act. That is to say that, once the applicants establish a mistake or non compliance with the provisions of Part V of the Act, the onus rests on the first respondent to prove that the election was conducted in accordance with the principles contained in Part V and that the proven mistakes or non compliance have not affected the outcome of the election. (emphasis added) 66. It is submitted that the same approach is appropriate for application by the Honourable Supreme Court in the current case. If the Court accepts that there has been a failure on the part of the 1st and 2nd respondents to comply with the Constitution or other written law, it is for the respondents to establish fact that it was conducted in accordance with the principles and did not affect the outcome (this on the basis that the Court accepts the argument above the absence of either of these means the election must be declared void). 67. It seems that in English law the situation in not entirely clear. In Parliamentary Election for Fermanagh and South Tyrone, Re [2001] NIQB 36 (19 October 2001) it was said, Although Kennedy J in Islington (1901) 5 O'M & H 120 at 130 said that the burden is on the successful candidate to show that the result was not affected, this is doubted in Parker's Law and Conduct of Elections, para19.92. 68. In Re Kensington North Parliamentary Election [1960] 2 All ER 150 Streatfield J said The question of the burden of proof does not, on the strict wording of s16, really arise. If it did arise, it seems that, under the wording of the corresponding section of the Ballot Act, 1872, the burden rested on the respondent: see Islington, West Division, Case, Medhurst v Lough &Gasquet . I

think that with the changed wording under s 16(3) of the Act of 1949 it is for the court to make up its mind on the evidence as a whole whether there was a substantial compliance with the law as to elections or whether the act or omission affected the result. However, a comparison of the two section does not really show where the difference lies: Ballot Act 1872 s. 13 No election shall be declared invalid by reason of a non-compliance with the rules contained in Schedule 1 to this Act, or any mistake in the use of the forms in Schedule 2 to this Act, if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election. Representation of the People Act 1949 s.16(3) No parliamentary election shall be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty in connexion with the election or otherwise of the parliamentary elections rules if it appears to the tribunal having cognizance of the question that the election was so conducted as to be substantially in accordance with the law as to elections, and that the act or omission did not affect its result

69. However, Streafield J went on to say: with the changed wording under s 16(3) of the Act of 1949 it is for the court to make up its mind on the evidence as a whole whether there was a substantial compliance with the law as to elections or whether the act or omission affected the result. 70. It is submitted that, so far as the first limb of s. 83 is concerned, to place the onus on the 1st and 2nd Respondents would seem to be appropriate. It is for the Petitioners to establish that there were indeed failures to comply with written law, but the parties best placed to argue and establish that the elections were conducted in accordance with the principles in the Constitution and the law are indeed the 1 st and 2nd Respondents. They should be in possession of the big picture. The Evidence Act 71. The Evidence Act provides that: 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. It is submitted that as a general Act this provision would give way to any specific Act of Parliament, and more particularly so to any inconsistent subsequent legislation. Thus if a court were to decide that the correct interpretation of s. 83 of the Elections Act is on the lines adopted in Namibia in relation to their equivalent of s. 83 (see above), this would prevail over the Evidence Act provision. 72. It is submitted that another approach, not inconsistent with the Evidence Act lies in the concept of evidentiary burden or the burden of going forward. It has been explained

by Mustill LJ(Brady (Inspector of Taxes) v Group Lotus Car Cos Plc [1987] 3 All E.R. 1050, 1059): It is, however, submitted that the concept of a shifting burden has another meaning, relative to what is called the 'evidentiary burden of proof'. Although this term is widely used, it has often been pointed out that it simply expresses a notion of practical common sense and is not a principle of substantive or procedural law. It means no more than this, that during the trial of an issue of fact there will often arrive one or more occasions when, if the judge were to take stock of the evidence so far adduced, he would conclude that, if there were to be no more evidence, a particular party would win. It would follow that, if the other party wished to escape defeat, he would have to call sufficient evidence to turn the scale. The identity of the party to whom this applies may change and change again during the hearing and it is often convenient to speak of one party or the other as having the evidentiary burden at a given time. This is, however, no more than shorthand, which should not be allowed to disguise the fact that the burden of proof in the strict sense will remain on the same party throughout, which will almost always mean that the party who relies on a particular fact in support of his case must prove it. (Emphasis added) This passage was quoted in the English Court of Appeal in Bhamra v Dubb (t/a Lucky Caterers) ([2010] EWCA Civ 13).8 The Court went on to relate this to the case before it: In the present case the legal burden of proof rested throughout on Mrs.Bhamra as the claimant; she therefore had the burden of proving not only that Mr.Dubb owed her husband a duty of care but also that he was in breach of that duty. However, once she had adduced evidence which, unless undermined or explained in some way, was sufficient to satisfy the judge that Mr.Dubb was in breach of duty, she would succeed on that issue unless he adduced some evidence to the contrary. In that sense, but only in that sense, an evidential burden would pass to him. 73. The concept is used in Kenyan cases for example it was referred to recently in BeuttahAnselimoMaaliv Ethiopian Airlines Enterprises([2013] eKLR). 74. It is suggested that such an approach may serve to reconcile any tension that may exist between the Evidence Act and the suggestion that the burden of proof in the s. 83 situation shifts. 75. To the extent that the ultimate decision must be based upon an evaluation of how far what happened was in accordance with the principles of the Constitution and the law, the Court should, it is submitted, take the approach of Streatfield J in Re Kensington (above) and decide on the basis of the evidence as a whole.
8URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/13.html

Standard of proof 76. There is a good deal of uncertainty about the standard of proof to be used in an election petition case. Some authorities suggest it is the usual civil standard of on balance of probabilities. Some suggest an intermediate standard between this and the criminal beyond reasonable doubt. And there are cases in which the acts alleged would amount to criminal offences, and the standard of proof is said to be beyond reasonable doubt, which is sometimes extended to situations not strictly of allegations of commission of a specific crime. Beyond reasonable doubt is not necessary 77. In some countries the suggestion is made that the standard of proof is always beyond reasonable doubt. This appears to be the case in Tanzania. Ibrahim J quoted in the Mwakwere case from a Tanzanian case: The burden is heavy on him who assails on election which has been concluded. He must prove beyond any reasonable doubt. (Nelson v Attorney General &Another 1997 2 E.A. CAT). However, this standard seems to be a result of statute; according to Mr. Justice Robert V. Makaramba:9 The provisions of section 108(2) of the National Elections Act and 107(2) of the Local Authorities (Elections) provide the standard of proof in trial of election petition. It is proving any or all of the grounds for avoiding the election to the satisfaction of the court. The level of the standard of proof is more or less that which is applicable in trial of criminal cases, which is, beyond any reasonable doubt. This settled legal position find expression in CHABANGA M. HASSAN DYAMWALE vs. ALHAJI MUSA SEFU MASOMO AND THE ATTORNEY GENERAL10 where Sisya J. (as he then was) observed that the term proved to the satisfaction of the court means that the standard of proof must be such that no reasonable doubt exists that one or more of the grounds set out in the relevant section have been established. 78. It is submitted that this is not the appropriate standard of proof in Kenya, subject to what is said below. Firstly the same phraseology is not found in the Kenyan legislation, where the words to the satisfaction of the court are not found. Secondly, it is not clear that the Tanzanian courts understanding of the significance of the these words is correct, or is at least not the only possible understanding. 79. In the English case of R (on the application of An) &Anor v Secretary of State for the Home Department &Ors [2005] EWCA Civ 1605, [2006] QB 468,11 Richards LJ said,

9 The Role of The East African Judiciaries in The Electoral Processes. Trial And Management Of Election Petitions By Courts: A Case of Tanzania A Paper presented at the Ninth EAMJA Annual Conference and General Meeting from the 11th 15th October, 2011. 10 [1982] TLR 69 (HC) (Tanga)(Sisya J.) (Misc. Civil Cause No.13 of 1980 11http://www.bailii.org/ew/cases/EWCA/Civ/2005/1605.html

42. In R v. Secretary of State for the Home Department, ex p. Khawaja [1984] AC 74 it was held by the House of Lords that, on an application for judicial review of an order detaining a person as an illegal entrant, it was for the executive to prove to the satisfaction of the court , on the balance of probabilities, the facts relied on by the immigration officer as justifying his conclusion that the applicant was an illegal entrant. Lord Scarman dealt at length with the standard of proof .: " It is not necessary to import into the civil proceedings of judicial review the formula devised by judges for the guidance of juries in criminal cases. Liberty is at stake: . The reviewing court will therefore require to be satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake. "... the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue": Dixon J. in Wright v. Wright (1948) 77 C.L.R. 191, 210. Accordingly, it is enough to say that, where the burden lies on the executive to justify the exercise of a power of detention, the facts relied on as justification must be proved to the satisfaction of the court . A preponderance of probability suffices: but the degree of probability must be such that the court is satisfied. The strictness of the criminal formula is unnecessary to enable justice to be done: and its lack of flexibility in a jurisdiction where the technicalities of the law of evidence must not be allowed to become the master of the court could be a positive disadvantage inhibiting the efficacy of the developing safeguard of judicial review in the field of public law." 80. Of course the courts are required to be satisfied of what had to be proved before they make any decision. It is submitted that that word does not mean beyond reasonable doubt, but whatever is the appropriate standard. On balance of probabilities 81. Recently, the Fermanagh and South Tyrone case (above) the court said (after the words previously quoted) We do not need to determine the matter by resort to the burden of proof, for we are affirmatively satisfied on the balance of probabilities that materially fewer than 53 voting papers were issued after 10 pm on polling day. We therefore hold that the breaches of the regulations did not affect the result of the election. In the Republican Party of Namibia (above) the court said, Not only will the applicant in an election application under s 109 be required to adduce sufficiently credible and reliable evidence to establish on a balance of probabilities the want of qualification, disqualification, corrupt and illegal practice, irregularity or other cause relied on, but also that the impact of those factors have been so substantial in the circumstances that they affect the result of the election.

82. The High Court of England and Wales recently said, in Simmonds v Khan ([2008] EWHC B4 (QB)) 69. Thus the court will apply (c) insofar as any standard of proof is appropriate, the civil standard of proof to the question of whether the general corruption may reasonably be supposed to have affected the result of the election. Beyond reasonable doubt in cases alleging crime 83. There are many cases in which the courts have said that if the allegation is one of commission of a criminal offence the standard of proof is that beyond reasonable doubt. In Simmonds v Khan (above) the judge said, 69 Thus the court will apply (a) the criminal standard of proof to the charges that Mr Eshaq Khan and/or his agents have been guilty of corrupt or illegal practices; (b) the criminal standard of proof to the question of whether there has been general corruption. By general corruption, the judge explained, was meant: In the past, particularly in the nineteenth century, it would happen that an election had been tainted with corruption or other illegal conduct but those seeking to set it aside could not prove any actual involvement in the wrongdoing by the candidate or his agents. Thus a body of law evolved to the effect that an election could be avoided on this ground but only if it could be shown that it was likely to have affected the result of the election. 84. It is suggested that a distinction should be drawn between unlawful conduct and criminal conduct. The Elections Act creates a large number of offences, including a considerable list of offences that may be committed by IEBC staff (s. 59). If however, allegations made are not of criminal conduct, but of conduct that is otherwise unlawful, the criminal standard of proof should not apply. However, the distinction is not easy to draw, especially as the offences under s. 59 include without reasonable cause does or omits to do anything in breach of his official duty. 85. It is also submitted that the reason for the rule should be born in mind. The underlying reason is that individuals are exposed to serious possible consequences if the allegations are found to be true. And if the Court were to hold that specific individuals were guilty certain consequences would follow: the Court is required to report the matter to the Director of Public Prosecutions . However, the ruling of the Court is not a conviction. And a person would not suffer the consequence of being unable to vote unless there was a criminal conviction (Constitution Article 83(1)(e)). Thus it is not entirely clear that the beyond reasonable doubt standard should apply even to specific allegations.

86. But if an allegation is made that, if true, has the implication that unidentified person may be guilty of offences, should the same rule as to standard of proof still apply? 87. In Simmonds v Khan, counsel had argued that: as general corruption did not involve the making of findings of corrupt or illegal practices against any named individual, it would be over-strict to apply the criminal standard of proof: the civil standard (proof on the balance of probabilities) should suffice. The judge conceded that there is much force in Mr Millar's arguments. However, he preferred both in the interests of personal consistency [he having applied this standard in a previous case] and from an abundance of caution to adopt the criminal standard. It is suggested that the Court might accept those arguments in which Richard Mawrey QC (sitting in Simmonds) saw much force. An intermediate standard? 88. There are a number of cases suggesting that in election petitions some intermediate standard of proof applies. In the Zambian case of Lewanika v Chiluba(S.C.Z. 8/EP/3/96, S.C.Z./SIEP/3196, S.C.Z./8/EP/4/96, S.C.Z./8/EP/4196 (1998) Z.R.49 (S.C.)) the court said, we wish to assert that it cannot be seriously disputed that parliamentary elections petition have generally long required to be proved to a standard higher than on a mere balance of probability. It follows, therefore, that in this case where the petition has been brought under constitutional provisions and would impact upon the governance of the nation and the deployment of the constitutional power and authority, no less a standard of proof is required. 89. In Kenya such a suggestion was made by the High Court (Maraga J) in Joho v Nyange (2008) 3KLR (EP) 500 (decided 2007). And in the Mwakwere case Justice Ibrahim said, In Kenya the standard of proof was dealt with by Justice Musinga in the MAGARA CASE. He said: MOHAMED JAHAZI VS- SHARIFF NASSIR A. TAIB Election Petition No. 9 of 1983, it was held that the burden of proof throughout rests on the Petitioner and the quality of evidence that is advanced is to be considered with thoroughness and gravity which is commensurate with the dire consequences that can follow by virtue of the provisions of the section 6[12] of the National Assembly and Presidential Elections Act and Section 35 of the Constitution. The standard of proof is slightly higher than the one adopted in civil cases, balance of probabilities, but not as high as in Criminal cases which is beyond any reasonable doubt. The evidence

126. A person shall be disqualified for registration as an elector if he has within the preceding five years been convicted of an election offence or been reported guilty of an election offence by the election court.

herein and is particularly the Petitioners allegations must be subjected to the degree of proof as stated herein-above, I accept the standard of proof applicable in Kenya to be that stated by Justice Musinga in the Magara case. 90. Some states in the United States have adopted what they call a clear and convincing standard in statute and in case law. One author has said,13 A clear and convincing standard is appropriate because our electionprocesses, though imperfect, have earned a strong presumption of correctness.To rebut this presumption, and thereby void or alter an official result, should require not just a fifty-one percent probability, but some higher confidence or likelihood that the official certification is not trustworthy. Without wishing to belabour the point that Kenyan election processes may not have earned such a strong presumption, we proceed to consider a more flexible approach. Flexible standard 91. It is, with great respect, not entirely clear what is meant by an intermediate standard between balance of probabilities and beyond reasonable doubt. In fact, according to the English Court of Appeal in R (On the Application of An) v Secretary of State (above), the court in that jurisdiction have not embraced the notion of an intermediate standard. This approach also implies that on balance of probabilities does not only mean that the court is deciding whether something is just over 50% more likely than not.After a very long review of authorities, the court in that case said, 60 Whatever differences in expression there have been over time, it was laid down clearly by the House of Lords in In re H[14] and Rehman[15] that in English law the civil standard is one single standard, namely proof on the balance of probabilities (or preponderance of probability). The other standard is the criminal standard of proof beyond reasonable doubt. There is no intermediate standard, nor is the civil standard to be broken down into subcategories designed to produce one or more intermediate standards. 62 Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of
13 Steven F. Huefner Remedying Election Wrongs (2007) 44 Harvard Journal on Legislation265, 313, 14In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. 15Secretary of State for the Home Department v. Rehman [2003] 1 AC 153.

probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities. 64 We accept Mr Bowen's submission, however, that there will be cases where proof of an allegation may have serious consequences even though it cannot be said that the matter alleged is inherently improbable. It seems to us that the same general approach must apply in such cases, even though the rationalisation put forward in In re H does not readily accommodate it. The more serious the consequences, the stronger the evidence required in practice to prove the matter on the balance of probabilities. (Emphasis added) 92. The seriousness of the implications of declaring an election void would appear to be a good example of the sort of concern raised by counsel (Mr Bowen). It is submitted that this flexible approach provides an appropriate way to deal with the ranges of issues that may require to be proved, without the necessity to engage in somewhat hair-splitting distinctions. It also, it is suggested, responds to the requirement of the Constitution, Article 159, and the Elections Act s. 80 about courts and procedural technicalities. The latter reads: ((1)(d)) decide all matters that come before it without undue regard to technicalities.

Rejected ballots
93. The Constitution provides that if in the presidential election no candidate obtains more than 50% of all the votes cast there must be a fresh election between, essentially, the top two candidates (Article 138). One issue is whether all the votes cast include rejected votes. 94. Votes may be rejected for several reasons set out in the Election (General) Regulations: (a) want of security feature; (b) voting for more than one candidate; (c) writing or mark by which the voter might be identified; or (d) unmarked or void for uncertainty. 95. One assumption is that the Constitution should be construed as though normal practices were to be followed. However, it is not possible to say there is one invariable practice. In the European Parliament the Rules say about the election of the President which requires an absolute majority: Rule 14 : Election of President - opening address 1. The President shall be elected first. Nominations shall be handed before each ballot to the Member provisionally in the chair by virtue of Rule 12, who shall announce them to Parliament. If after three ballots no candidate has obtained an absolute majority of the votes cast, the fourth ballot shall be confined to the two Members who have obtained the highest number of votes in the third ballot. In the event of a tie the older candidate shall be declared elected.

And a description of the system says, To be elected, a candidate must win an absolute majority of the valid votes cast, i.e. 50 per cent plus one (Rule 14). Blank or spoiled ballots do not count in calculating the majority required.16 96. A leading authority on electoral systems, the IDEA (Institute for Democracy and Electoral Assistance)Handbook on Electoral System Design, says17, The central feature of the Two-Round System is as the name suggests: it is not one election but takes place in two rounds, often a short time apart. The first round is conducted in the same way as a single-round plurality/majority election. In the most common form of TRS, this is conducted using FPTP. A candidate or party that receives a specified proportion of the vote is elected outright, with no need for a second ballot. This proportion is normally an absolute majority of valid votes cast, although several countries use a different figure when using TRS to elect a president (emphasis added). 97. Article 7 of the Constitution of France says, (1) The President of the Republic shall be elected by an absolute majority of the votes cast. If this is not obtained on the first ballot, there shall be a second ballot on the next Sunday but one. According to Electionresources.orgIf no candidate obtains an absolute majority of all valid votes cast in the first round, then the top two candidates qualify for a runoff election, 18 which is borne out by the figures from the 2012 elections, where President Hollande won 10,272,705 voted in the first round, which is described as 28.6% and it is in fact 28.6% of the number of valid votes given: 35,883,209.19 98. On the other hand, in the context of national elections, a paper from the OECD commenting on the Election Code for Macedonia, said of the second point: While it is understood that the invalid votes should be counted since they actually voted, it should also be stipulated clearly.20 This does not treat invalid votes as not being votes at all. 99. Turning to legal authorities. There have been a few decided cases. In a Manitoba case, re Swan River Local Option Bylaw (1906) 3 WLR 546 (Man KB), the court held: When the voter deposits his ballot, so marked that it is properly rejected under the provisions of the law, he has, in law, failed to state his choice, and cannot be said to have voted. Hence, in interpreting the Act, which provides that any bylaw shall require the assent of 3/5 of the electors 'who vote on such bylaw',
16Election of the President of the European Parliament http://www.europarl.europa.eu/sides/getDoc.do? pubRef=-//EP//NONSGML+IM-PRESS+20090616BKG57210+0+DOC+PDF+V0//EN&language=DE 17See http://aceproject.org/ace-en/topics/es/esd/esd01/onePage. 18Manuel lvarez-Rivera, Presidential and Legislative Elections in France http://www.electionresources.org/fr/. 19http://www.electionresources.org/fr/president.php?election=2012. 20 European Commission for Democracy Through Law (Venice Commission) and OSCE Office For Democratic Institutions and Human Rights (OSCE/ODIHR), Draft Joint Opinion On The Revised Electoral Code of The Former Yugoslav Republic Of Macedonia Opinion No. 640 / 2011CDL(2011)091 (2011).

only those electors whose ballots are accepted should be counted in computing the total number of [those] voting on the bylaw. 100. In the USA the Vermont Labour Relations Board held that a spoiled ballot did not count. It was a ballot but not a vote. It said in International Union of Operating Engineers Local #98, AFL-CIO v City of Montpelier21, When the counter of ballots is trying to determine a majority between several choices in order to place the choices receiving the largest and second largest number of votes, he can only consider those ballots which clearly indicate the voters intention. It cited two previous US cases Semi-Steel Casting Co. v. N. L. R. B., 8 Cir., 160 F.2d 388 and Re Manchester Town Elections They quote the former: The Boards practice in determining the result of an election on the basis of the number of valid votes cast cannot be said to prejudice the rights of either party to the election.It is not unfeasible to say that the employee whose vote was marked both for and against the union did not in fact participate in the election. So far as can be ascertained from his ballot, he attended the polls merely to express his indifference to the result 101. However, in at least labour relations context the rule is different in some countries. In the Philippines the Supreme Court said that while ballots of those ineligible to vote should be excluded, However, spoiled ballots, i.e., those which are defaced, torn or marked (Rules for Certification Elections, Rule II, sec 2 [j]) should be counted in determining the majority since they are nevertheless votes cast by those who are qualified to do so.22 102. If there is no very clear universal practice, how far do the words and purposes of the Constitution assist? 103. The former Constitution referred to valid votes (Article 5 (3)(f)): the candidate for President who is elected as a member of the National Assembly and who receives a greater number of valid votes cast in the presidential election than any other candidate for President and who, in addition, receives a minimum of twenty-five per cent of the valid votes cast in at least five of the eight provinces shall be declared to be electedas President.

104. The current Constitution does not say valid votes. Did the drafters intend something different from the previous Constitution? They could have included valid but did not. 105. It is also not clear whether all the votes cast was intended to include the rejected ballots. On the one hand it could have been intended to make it clear that it was not just a
21http://vlrb.vermont.gov/sites/vlrb/files/AlchemyDecisions/Volume%203/3%20VLRB%20230.pdf. 22 G.R. Nos. L-22580 and L-22950 June 6, 1967 Allied Workers' Association of The Philippines (National Chapter) vs. Court Of Industrial Relations And Associated Labor Union. http://www.lawphil.net/judjuris/juri1967/jun1967/gr_l-22580-650_1967.html

matter of who got the most votes. But this was actually unnecessary if this was the intention. It might be argued however, that rejected ballots are not votes at all (indeed the regulation refers to them as rejected ballots not rejected votes). 106. It is submitted that the most productive approach is to consider the objectives of the constitutional provision. Generally the issue involves ballot papers that were either deliberately spoiled by the voter (crossed through or scrawled upon with a message rejecting all candidates or all elections etc.) or where the voter failed to make clear his/her intention. A voter might even deliberately or by mistake drop in a blank paper. Spoilt and deliberately blank papers are all ways of not voting. Does it make sense to count them as votes cast? 107. On the other hand, to think of invalid votes in terms of deliberately spoilt ballots is unrealistic in the Kenyan context. Surely no-one has stood in line for 4 hours or so merely to spoil a ballot. They intended to vote for someone. Through perhaps little failure of their own they have failed to do so maybe through nervousness, lack of civic education, colour blindness etc. 108. It is important to think about what the Constitution intended to achieve. The drafters decided it was not enough to identify the person who had the largest number of votes: that person must have broad national support in two ways (50%+ and ideally support across counties). It was not practical to insist that a candidate received 50%+ of all registered voters (and voting was not made compulsory). But it does not seem improbable that the drafters intended that the winning candidate should receive over 50% support from those who did wish to vote.

What are the possible orders for the court to make?

109. The Constitution, Article 140, says, (3) If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination. 110. This gives rise to three questions: 1. Can the Court make any other determination than that the election was invalid, assuming it is satisfied that there were grounds for such a decision? 2. Can the Court give any other remedy if it makes such a determination? 3. What is a fresh election? 111. The Courts own Rules provide: 22. (1) At the conclusion of the hearing of an election petition, the Court may make an order: (a) dismissing the petition; (b) declaring the election of the President-elect to be(i) valid; or

(ii) invalid. (c) invalidating the declaration made by the Commission under Article 138(5) of the Constitution; (d) on payment of costs; (e) as it may deem fit and just in the circumstances. 112. Although the Constitution contemplates a very limited range of outcomes, it is submitted that the Court does have more options open to it. However, there is some lack of precision in these rules. The list items (d) and (e) (the last two items) are not separated by either and or or. This is at onelevel not surprising because (a) and (b)(i) might be ordered together, while (d) would be made with any other order. But (a) and (c), for example, could not be made in the same case. Unfortunately, this leaves the role of (e) unclear. Does it mean that each of the orders (a)-(d) is to be as it may deem fit and just in the circumstances or is it really intended to be read as any other order as it may deem fit and just in the circumstances? 113. It is perhaps appropriate to look at this issue in the light of the approach of courts to the issue of declaring a whole election void. In Fitch v Stevenson (above) said, The decided cases, including those which Lord Denning considered in Morgan v Simpson, establish that the Courts will strive to preserve an election as being in accordance with the law, even where there have been significant breaches of official duties and election rules, providing the result of the election was unaffected by those breaches: see Woodward v Sarsons (1875) LR 10 CP 733; Islington 5 OM & H 120; Marshall v Gibson, Divisional Court, Judgment of 14th December 1995; Harris v Gilmour, Divisional Court, Judgment of 11th December 2000. This is because, wherever possible, the Courts seek to give effect to the will of the electorate. However, the words underlined are of course crucial: if the results have been affected some remedy must be provided. 114. And, as stressed earlier, it is also clear from authorities Kenyan and foreign that if the breaches and failures are so great that constitutional principles and those of the law have not been observed an election still may indeed on one view of s 83 of the Act must be declared void. 115. The words of the Namibian courts are also recalled, stressing that public expense cannot be a reason for not providing a necessary remedy. What is a fresh election? 116. Here we encounter a failure of imagination on the part of the drafters of the Constitution, as well as some inconsistent drafting. The first issue is that the drafter did not provide for an election petition for the first presidential election unless it produced a final result (namely someone who was declared to have won over 50% of the votes cast). Nor do they seem to have realised the possibility that faces the Court now: a challenged

first election that had produced such a winner. It was a result of the latter failure, it seems, that led to the expression fresh election being used twice in not necessarily the same sense. In Article 140 it is submitted, fresh election means having the same election all over again. In Article 138 the same expression means having a different election namely between the two front-runners, namely the run-off. 117. If the case before the court arose from a run-off election the only possibility if the Court declared it invalid would be for the same election to be run again. This would be an Article 140 fresh election a re-run of the Article 138 fresh election. 118. Now that the issue arises from the first round, there are two possible types of fresh election: a complete re-run of the election that has already taken place or a run-off. It is submitted that if the Court held the first election simply invalid it would have no choice but to order the first type: an Article 140 fresh election. 119. However, it is suggested that the following chain of reasoning would enable the Court to order an Article 138 fresh election: Whatever the shortcoming of the election that took place, there is no reason to believe that even if run perfectly any of the 6 candidates other than the front-runners would have been one of the first two in the results. In that sense the failures, if such the Court finds there to have been, did not affect the result of the election. However, the Court might find that the evidence shows that the result in terms of whether any candidate got over 50% was affected. In that case the Court could decide that the election the subject of the petition was not an election of the President-elect, but was an Article 138(5) situation and therefore a fresh election under that Article and not under Article 140 must take place.

Recount? 120. Could the Court order some sort of recount? In Fitch v Stevenson the court observed, 44. The availability of a proportionate, judicial remedy for rectifying the result and declaring the true result of an election, following scrutiny and a recount, prevents the necessity to choose between vitiating the entire election and allowing an erroneous result to stand. 121. The Elections Act provides: 82. (1) An election court may, on its own motion or on application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out in such manner as the election court may determine. However, the Act envisages a scrutiny of votes to be something that takes place in the course of the hearing, rather than as a remedy. The provision does not mention a

recount, but a recount is usually included when scrutiny of ballots is granted: See Joho v Nyange (2008) 3 KLR (EP) 188, (decided 2006), p. 194 122. There would seem to be several possibilities: A complete recount of all the presidential ballots, which are supposed to be stored in sealed boxes in the custody of the IEBC A recount of a selection of counts on which there is reason to be particularly concerned. A re-addition of all the forms 34 to cross check with forms 36, and thus the final total. This is not a recount.

123. A recount of course is of limited (or rather of very specific) value: it assumes that the electoral process worked well until election day, but that something went wrong with the actual counting. It is unlikely to be an effective tool to resolve doubts about the voters register. A scrutiny might reveal some instances of persons wrongly allowed to vote, including instances of double voting,but would not reveal anything about persons wrongly allowed to register or deprived of the chance to vote at all. 124. It is also a very time consuming process: in the Magara case (above) the recount for a single constituency took 13 days. Interestingly the recount in that case served not to resolve any issues but to reinforce the claims of the petitioner about the way in which the election had been run. It would be impossible to conduct a recount within the 14 days allowed by the Constitution for the Court to determine the petitions before it. It would be ironic in the extreme if the Court felt that it could not order a recount because of want of time and was thus compelled to require a fresh election.

The IEBC Dilemma

125. Some of the petitioners are in effect alleging that the IEBC was responsible for very serious mismanagement of the recently concluded elections. The irony of asking that same body to conduct fresh elections (of whatever type) has not escaped a number of commentators. 126. It is suggested that the Court would not be exceeding its jurisdiction if it imposed upon the IEBC if it decides that that body must conduct a fresh election certain conditions. No other body can be constitutionally asked to carry out the task. However, it is submitted that it would be possible for a requirement to be imposed that some sort of supervisory team be placed within the Commission to monitor how it carries out this task, and that this team be required to report to the courts. Since any dispute would again have to come before this Honourable Court, it would be inappropriate for it to be involved in a supervisory role itself. The United Nations and certain other bodies have experience and expertise in running elections, and it ought not to be impossible to find some way of identifying some suitable experts. 127. The amicus is conscious of the separation of powers issue. But if a body has been responsible for serious breaches of the Constitution and of the trust reposed in it by the

Kenyan people, some curtailment of its constitutional autonomy may be if not inevitable at least salutary and constitutionally justified. As Justice Nyamu pointed out in Election Commission of Kenya v Attorney General ((2008) 3KLR (EP) 596) an electoral commission is accountable. He said it is entitled to such autonomy but it must be an autonomy with responsibility (p. 605). The proposal made here is not designed to infringe the constitutional guarantee that independent commissions are not subject to direction (Article 249(2)(b)), but to try to make accountability to the courts more effective, in the event that this Honourable Court decides that the 2 nd Respondent has been found seriously wanting.

Costs
128. It is submitted that a case of this nature, assuming that the petitioners are able to convince the Court of a significant number of their allegations, is a matter of great public importance, as the early paragraphs of this submission have, it is believed, made very clear. 129. In cases brought in the public interest in many countries, including in a number of cases in Kenya, courts have decided that, even if unsuccessful, petitioners should not have to pay the costs of the other side. In the Namibian Rally case (above) the appeal court said, [144] Administrative mistakes of this nature in the conduct of elections are a matter which also received attention from the Court a quo. Court noted as follows: It will be unfortunate if the people responsible for the lapses are allowed to participate in the conduct of elections and to unnecessarily put the country through the same controversy and suspicion that had characterised the aftermath of the 2009 (National Assembly) election. It will be a sad day indeed for this fledgling democracy if, after this verdict, those who manage elections think that they have been completely vindicated, and therefore to continue with business as usual. We have noted the other reasons and considerations why that Court found it necessary to make a special order of costs and, although we do not find it necessary to repeat them for purposes of this judgment, we nevertheless endorse those views. Those considerations apply with equal force to this case. The responsibilities cast by the Act on the Commission are onerous but they must be executed with impartiality and efficiency. The court did not order the petitioner to pay the costs of the Electoral Commission. 130. However, the Elections Act says, 84. An election court shall award the costs of and incidental to a petition and such costs shall follow the cause. The former Act said,

29. An election court may, in its discretion, award against thepetitioner the costs of and incidental to a petition which is dismissedor rejected. It is quite a remarkable provision, even in its original form. There are well-established rules about costs, which are normally left to the discretion of the court. The inclusion of such a provision (limited to the possibility of awarding costs against the petitioner, and in its current form requiring such costs) seems to be devised to discourage the quite legitimate activity of challenging election results.23 131. The Supreme Courts own Rules of Presidential Election Petitions includes a provision on costs, but it is submitted that it must be read in the light of the statutory provision, subject to the submission in the preceding paragraph. 132. It is submitted that this provision is arguably unconstitutional. It picks out this particular type of civil litigation and prevents the court from applying its usual principles. Those principles may be used to protect those who have brought legitimate concerns before the courts being heavily penalised in the form of costs. Public interest litigation would be far less possible if the usual rules about costs following the event were to be applied without the courts having any discretion. 133. The earlier version of the rule provided only for the petitioner to be required to pay costs; the new version does not appear to be discriminatory in the same way. 134. The various constitutional provisions about access to justice are very relevant: Article 48 provides: The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice. And Articles 22 and 258 are intended to facilitate the use of the courts to ensure protection of rights and constitutionality more generally respectively. The former says, no fee may be charged for commencing the proceedings. Costs, and security for costs, are not fees, of course. But the amounts are large or potentially so, and the discouragement of public interest litigation probably greater than would be the effect of a court fee. 135. The importance of the Article 28 right to make political choices has already been emphasised: election petitions may well have human right dimensions. 136. The most frequent election petitioner is not someone acting in the public interest, but a defeated candidate. In this context the costs rule simply serves to underline the money driven nature of Kenyan elections. 137. A corollary of the costs rule is that petitioners are required to deposit security for costs. This rule has been challenged as unconstitutional in both Kenya and Tanzania with different results. In both, the basis was discrimination. In Kenya, though the court was very critical of the rule, it found itself unable to hold that discrimination had been
23The Elections Bill as it was sent from the Commission on the Implementation of the Constitution included the provision in the old form; this suggests that Parliamentarians changed it.

established. It did point out that the rule had apparently caused a great decline in petitions, and said there was need for the Attorney-General to rethink the matter ( Nakusa v Tororei (No. 2) (2008) 2 KLR (EP) 565 (decided 2003). 138. In Tanzania, on the other hand, the abolition of the possibility of seeking an exemption from the rule was declared unconstitutional. The Court of Appeal in Ndyanabo v Attorney-General (Civil Appeal No. 64 of 2001), disagreeing with the court below, said, With great respect to the learned Judges, we cannot agree that access to justice constitutes mere filing of pleadings and paying the required court-fees. The right to have recourse or access to courts means more than that. It includes the right to present ones case or defence before the courts. It cannot, therefore, be correct to say that once he files his petition a petitioner in an election petition has enjoyed the whole of his right of access to justice. Access to justice is not merely knocking on the door of a court. It is more than that. It is submitted that these words apply not only to the deposit but to the rigidity of the costs rule. 139. The same is true of the words of the judge (Rahman, J) in a Bangladesh case, Farooque v Secretary of the Ministry of Irrigation, Water Resources & Food Control (Bangladesh) and others [2000] 1 LRC 1, at p.28 adopted by the Court in Ndyanabo, words which make a fitting conclusion to this submission generally: If justice is not easily and equally accessible to every citizen there then can hardly be a rule of law. If access to justice is limited to the rich, the more advantaged and more powerful sections of society, then the poor and the deprived will have no stake in the rule of law and they will be more readily available to turn against it. Ready and equal access to justice is a sine qua non for the maintenance of the rule of law. Where there is a written Constitution and an independent judiciary and the wrongs suffered by any section of the people are capable of being raised and ventilated publicly in a court of law there is bound to be greater respect for the rule of law.

DATED IN NAIROBI THIS 26TH DAY OF MARCH 2013 WAIKWA WANYOIKE ADVOCATE, KATIBA INSTITUTE FILED BY Waikwa Wanyoike, Advocate C/O Katiba Institute Rose Avenue, Off Argwings Kodhek Road Hurlinhgam

P.O. Box 51538-00100 Nairobi Email: waikwa@katibainstitute.org