Judicial Preparedness for Handling Electoral Disputes in Kenya and Beyond

17 May 2017

 

Addressed by IDLO Director-General Irene Khan

Joint Launch of the Judiciary Committee on Elections (JCE) Annual Report 2016 and IDLO Lessons Learned and Brief (LLB) on Judicial Preparedness for Handling Electoral Disputes in Kenya and Beyond

May 4, 2017

Nairobi, Kenya

 

Hon. Chief Justice,

Hon. Attorney General,

Chairperson, Independent Electoral and Boundaries Commission,

Other Constitutional Commissions & Independent Officers Present,

Judges and Judicial Officers Present,

Excellencies, distinguished guests, ladies and gentlemen

I am honored to join you today on this important occasion. This joint launch of the Judiciary Committee on Elections Annual Report 2016 and IDLO’s Lessons Learned Brief on Judicial Preparedness for Handling Electoral Disputes in Kenya and Beyond marks an important milestone in our collaboration with the Kenyan judiciary. I would like to take the opportunity also to thank our partners from the international community who have made this collaboration possible.

IDLO is the world’s only intergovernmental organization exclusively devoted to advancing the rule of law and development, and we do so through capacity development, technical assistance and policy advocacy.

Kenya is a Member Party of IDLO, and since 2010 IDLO has provided support to Kenya for the development and implementation of its Constitution, and later for the devolution process and the transformational reform and strengthening of the Kenyan Judiciary.

The 2010 Constitution of Kenya, based on international best practice, establishes a fresh approach to governance and democracy. Under the Constitution elections are expected to be free, peaceful and credible. Delivering this constitutional requirement is the responsibility of several institutions. This is by no means an easy task.

As a contest for political power, elections by their nature invite disputes in all countries, whether developing or developed. Courts have the principal responsibility for addressing disputes, but often, and especially in developing countries, they are poorly equipped to play this role. As Kenya’s history shows, if electoral grievances are not properly handled, they can led to mass protests and violence and undermine the legitimacy of the elections.

Effective electoral dispute resolution is therefore key to preventing violence and ensuring the legitimacy of electoral results.

In many emerging democracies, concerns about judicial independence deter candidates from using the courts to adjudicate electoral disputes. Weak and incoherent laws and opaque systems can prevent the timely and fair handling of electoral complaints. Courts often do not have the capacity, knowledge or means to effectively manage electoral disputes. Furthermore, electoral cases cannot be treated in the same way as other matters that come before the courts because of their inherent political sensitivity, the high public interest in their outcomes, the intense bursts in which election petitions are filed, and the short time limits in which election matters must be dispensed if they are to be credible.

Our Report focuses on the experience of the Kenyan judiciary in the 2013 elections, and concludes that the successful management of election petitions by the Kenyan judiciary was one of several key factors responsible for the relatively peaceful elections and transfer of power in Kenya in 2013.

Overall, 188 petitions challenging results of the election process were filed in the courts. All such disputes were finalized within the statutorily mandated six-month period by the court of first instance. Despite time constraints and pressures, the electoral bench of the High Court was praised for the consistency of its jurisprudence and the attention it paid to substantive electoral justice, marking an important departure from past tendencies to rely on legal technicalities to dismiss electoral petitions.

From mid-2012 onwards, IDLO supported the Judiciary Working Committee on Elections Preparations (JWCEP) in various ways. 

  • We supported the JWCEP to develop procedural rules for hearing disputes concerning presidential elections;
  • We trained over 700 judicial officers and court staff on the new Constitution and electoral laws;
  • We created a frequently asked questions (FAQ) document which was disseminated widely to the public through different platforms to build awareness of and confidence in the judicial dispute resolution mechanism;
  • We embedded a group of researchers within the judiciary to serve as reference points for judicial officers hearing electoral disputes; and
  • We assisted the judiciary to undertake comprehensive stakeholder engagement, including regular dissemination of information about the progress of cases in the EDR system.

IDLO work with Kenya’s EDR system in preparation for the 2017 elections has continued with the permanent Judiciary Committee on Elections (JCE), the successor organization of the JCEWP.

Allow me congratulate the Judiciary Committee on Elections on its Annual Report 2016, which was developed with IDLO’s assistance. I am confident the excellent preparatory work of the JCE towards the 2017 general elections positions the judiciary well to discharge its mandate on electoral dispute resolution.

As five countries in Africa, including Kenya, Angola, DRC, Liberia and Rwanda go to the polls this year, there is much that the rest of Africa as well as Kenya can learn from this experience.

Putting it in the international context of the 2030 Agenda for Sustainable Development, to which Kenya actively contributed as Co-Chair of the process, and the UN’s Agenda for Sustaining Peace, the lessons learned in Kenya may also have broader application for emerging democracies around the world.

IDLO’s Report draws out some clear lessons:  

First and foremost, the critical importance of a judiciary with integrity and independence that enjoys public trust and confidence. The 2010 Kenyan Constitution provides for the judiciary’s legal independence. Subsequently the judiciary instituted wide sweeping reforms. The impact of these reforms have been reflected in surveys which have shown a doubling of public confidence in the independence of the judiciary in Kenya in recent years.

The challenge now for the Kenyan Judiciary – as for the Judiciary in many other countries – is to ensure that the judicialization of politics does not lead to the politicization of the judiciary.

Second, there should be clear, consistent, transparent and comprehensive laws and regulations in place ahead of elections. Judges can only apply the law that exists.

Third, the electoral dispute resolution process and mechanism must be owned, lead and coordinated by the judiciary. In Kenya, the JWEP and now the JCE  have shown the critical importance of this role.

Fourth, there should be comprehensive, tailored capacity development programs for the judges as well as support staff – such as registrars, legal researchers and ICT staff - to build the skills they need. This is a specialized area of law. Judges need to know electoral jurisprudence, international standards and principles of elections, jurisdictional rules and also learn from the experience of other countries. Training has to be accompanied by tools such as handbooks and checklists that make guidance readily available in easily accessible forms.

Fifth, electoral justice should not be restricted to elites or well-resourced petitioners but must be available to all those who feel disenfranchised and excluded. An electoral dispute resolution system has little value if it remains unknown or inaccessible to those who need it most – the public as well as lawyers, candidates and political parties.

Extensive public outreach is essential to ensure the public as well as the political parties understand and trust that the EDR system will deliver swift and independent justice. The public backlash against the judiciary following the Presidential petition decision in the Supreme Court in 2013 provides a lesson on the immense difficulties of convincing a cynical public that judicial decisions are based on legal reasoning, not political influence.  That makes transparency and public outreach by the judiciary all the more important.

Finally, while acknowledging the crucial role of an independent and well-capacitated judiciary, let me underline that the most critical challenges are not related to the law and the judiciary itself but derive from the attitudes and behavior of political and other actors and institutions. Parallel measures to strengthen the electoral administration and electoral management bodies is of critical importance.

In the final analysis, rooting out electoral violence and replacing it with peaceful judicial dispute resolution requires concerted non-partisan commitment to a culture of democracy and justice from political actors and institutions, as well as the electorate.

As Kenya prepares to further strengthen its Judiciary as an essential pillar of democracy and justice for all, let me reiterate IDLO’s commitment to continue to work closely with the Kenyan judiciary and other Kenyan institutions devoted to advancing the rule of law.

Thank you.

 

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The International Development Law Organization (IDLO) enables governments and empowers people to reform laws and strengthen institutions to promote peace, justice, sustainable development and economic opportunity.