The Supreme Court of Kenya is about 11 years old. But the apex court has now become a key cog in the ever-growing demand to improve the electoral laws in the country.
This time, it is also expected to deliver verdicts on nine petitions related to the 2022 presidential elections in which the Independent Electoral and Boundaries Commission (IEBC) declared Deputy President William Ruto president-elect. The nine petitions are likely to be merged into one case, given the strict timelines in which the court must deliver judgment within 14 days.
First established in law in the 2010 Constitution, the Supreme Court of Kenya is mandated to settle disputes related to presidential elections. In the past four elections, one man, Raila Odinga, has been a constant character in all, except one, of the petitions before the court.
But just how has the court helped electoral policy?
Read: Explainer: Kenya’s poll battle in Supreme Court
2013
Following the 2013 presidential elections in which Uhuru Kenyatta emerged the winner with 50.07 percent against Mr Odinga’s 43.31 percent, the court issued a report saying that it found irregularities during the partial recounting of votes in five out of 22 polling stations. However, it said they were not enough to change the final tally.
The court, led by then Chief Justice Dr Willy Mutunga, also disallowed some of the evidence presented by Mr Odinga’s team on the grounds that they submitted it after the deadline.
Read: Kenya’s judiciary dilemma
Crucially, however, the Supreme Court ruled that spoilt votes should not form part of the percentages when calculating the winner’s final tally. In 2013, the number of spoiled votes had risen so high, rivalling the tally of the third-placed candidate Musalia Mudavadi. There were nearly 400,000 spoilt votes, which could have altered the percentages for candidates who were all seeking to cross the 50 percent+1 threshold if included in the tally of ballots cast.
Some lawyers had argued that the spoilt votes could easily be used to undercut opponents, especially in strongholds.
2017
In 2017, the presidential election petition also set several precedents, which the IEBC tried to rectify in the 2022 elections.
The Supreme Court, led by then Chief Justice David Maraga, nullified the elections, citing non-compliance to the constitution in how the electoral agency conducted the polls.
Read: Why Supreme Court ruling was no surprise
It found that IEBC was not transparent and did not employ the electronic transmission methods as required by the law. As such, there was a cloud of darkness between polling stations and numbers relayed to the tallying centre in Nairobi. Borrowing from an earlier appellate case, the court upheld that the vote count declared at the polling stations was final and can only be changed on the petition by an aggrieved party in court.
The IEBC shot itself in the foot after refusing to open its servers for scrutiny, forcing the apex court to rule that the votes and results could not be verified.
2022
This year, the IEBC displayed more than 46,000 Forms 34A, which tabulate results from each polling station, on a public portal. The electoral body also managed to get most of the Kenya Integrated Electoral Management System (Kiems) kits working except in 1,111 polling stations where voters were identified manually.
Read: Kenya elections: The technology headache
The IEBC attempted to abide by the stern warning from CJ Maraga, who had warned that: “This court whenever called upon to adjudicate on a similar dispute, will reach the same decision if the anomalies remain the same, irrespective of who the aspirants may be. Consistently, fidelity to the constitution is a non-wavering commitment this court makes.”
IEBC compliance
In 2017, in some polling stations, voters only cast ballots for the presidential candidates, despite the election involving five other elective posts. That question is likely to be re-asked after the principal petitioner this year, Mr Odinga, claimed thousands of voters cast ballots for presidential seats but did not vote for others.
Mr Odinga filed his petition on Monday, challenging the presidential results. It could also be an exam on the IEBC to see just how far they complied with the 2017 directives.
A key development in the 2022 elections was the quashing by the High Court of an attempt by Chief Justice Martha Koome to amend the presidential petition rules. The regulations had barred lawyers representing the litigants’ parties from discussing the case before judgment.
But Justice Mugure Thande ruled last week that the Presidential Election Petitions (Amendment Rules), 2022 were unconstitutional because they did not adhere to the public participation requirements. She also ruled that the laws were usurping the legislative powers of the National Assembly.
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