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Kenya’s swift election dispute resolution puts spotlight on Nigeria

Kenya’s swift election dispute resolution puts spotlight on Nigeria

The Supreme Court of Kenya on Monday dismissed various petitions challenging the outcome of the August 9 presidential election, which saw William Ruto, Kenya’s incumbent vice president, emerge president-elect.

The court upheld Ruto’s election as Kenya’s next president with the decision.

The speed with which the election dispute was dispensed with by the East African country’s judiciary holds lessons for Nigeria.

Some international experts and legal practitioners who spoke with BusinessDay on the lessons that Nigeria can learn from the development in Kenya were however, divided on the issue.

Ikechukwu Uwanna, chairman of the Nigerian Bar Association, Lagos State branch, said the decision of the Kenya’s Supreme Court Judges to uphold the presidential election result, despite the disagreement among some members of the electoral commission about the outcome, sends a message that the interest of few people should not override the decision of majority citizens which Nigeria must learn from.

Uwanna further challenged lawyers and judges in Nigeria to support efforts to deepen the use of technology in elections across Nigeria.

“I watched the judgment; I was happy, despite the division among some members of the electoral body; the judges said the decision of the four electoral officials should not take over the interest of the whole country.

He said: “The decision is commendable; it calls for a mechanism to be put in place to speed up cases here. Our lawyers should learn to aid the delivery of judgment. It is an interesting judgment we should learn from.

“Here in Nigeria, we have been talking about electronic voting and transmission of results; Justices in Nigeria should protect the use of technology in our elections.”

Uwanna added that it was important that judges should learn from their Kenya counterparts, who did not allow themselves to be compromised from external forces despite enormous pressure on them.

He said: “I must commend the Supreme Court of Kenya. One of the Judges said; they had not slept since last Friday because they had to be working on the case. I am happy for Kenya that Justice was delivered. The judges also said they have not been picking calls.

“It is good for democracy; they have not allowed themselves to be influenced by external forces. Although there were disputes in some parts of the results, the Justices said they were not substantial.”

Bola Akinterinwa, a former director-general, Nigerian Institute of Internal Affairs, said that although the margin of Ruto’s victory against Raila Odinga was narrow, he did not expect an upturn in the presidential election result from Kenya’s Supreme Court.

Akinterinwa noted that unlike Nigeria, Kenya is a more docile society, and not a federation, stressing that Nigerians should not expect expeditious delivery of cases like in Kenya because of the peculiar nature of the country’s judiciary.

Akinterinwa said: “The judgment was expected, even though the margin was narrow, I did not expect an upturn in the election result from Kenya’s Supreme Court.

“But if you are comparing the two countries, you have to look at the legal system; though similar but the attitude is different. Kenya is a more docile society; they don’t have a federation like Nigeria. Nigerians should not expect expeditious delivery of cases like in Kenya.

“The system there does not allow candidates to go from one place to another like us. I really don’t know if there is a lesson to be learned here, but we have to keep our fingers crossed.”

The Kenyan constitution states that in order to win the presidential election, a candidate must receive more than half of all votes cast and at least 25 percent of votes cast in at least 24 of Kenya’s 47 counties.

In Kenya, Electoral Dispute Resolution is distributed across a variety of institutions and processes to handle various types of issues.

The Independent Electoral and Boundaries Commission (IEBC), Political Parties Disputes Tribunal, Office of the Director of Public Prosecutions, and the judiciary are among the institutions.

The multiple institutions help to decongest the court, which is Nigeria’s sole institution for resolving election disputes.

The Kenyan constitution requires the general election to be held on “the second Tuesday in August, every fifth year,” similar to the US election, which is held on the first Tuesday in November of the election year. This establishes and secures the election date.

In contrast, in Nigeria, the Independent National Electoral Commission is the body that determines the date of the election, a date that is frequently not held sacred due to the serial postponement of general elections.

Read also: Kenya’s Ruto to be sworn-in after court dismisses challenge to his election

How Kenya deals with electoral disputes

A new constitution outlining the procedures to be followed for resolving election disputes was approved in 2010. It came after a disputed election in the East African country in December 2007, in which more than 1,200 people were killed.

The violence was blamed in part on the losing candidate’s distrust of the courts at the time.

The new constitution created a seven-member Supreme Court, whose responsibilities include resolving presidential election disputes.

Petitioners must file their complaint with the Supreme Court within seven days of the announcement of the results.

The constitution requires the nation’s highest court to rule within 14 days of the lawsuit being filed.

Odinga, the opposition leader who failed to secure the presidency on his fifth attempt, and six other parties petitioned the court to overturn Vice President Ruto’s victory.

They claimed massive irregularities harmed the fairness of the August 9 election. According to the official results, Ruto received 50.5 percent of the vote, while veteran opposition figure Odinga got 48.8 percent.

While the chairman of IEBC, Wafula Chebukati, defended the election’s integrity, four of the body’s other six members disagreed, citing a lack of transparency in the count.

Following the dispute, the court holds a status conference with all parties to determine the hearing schedule and ground rules.

Due to the compressed timeline, it usually issues a summary judgment within 14 days, followed by more detailed decisions from each of the seven judges at a later date.

How the court rules

The court has three options when faced with a presidential election petition.

If it finds sufficient grounds to call the legality of the result into question, it can invalidate the election result and order a new election within 60 days; or it can criticise the process but conclude that there were insufficient grounds to overturn the result; or it can uphold the election if it finds it was conducted in accordance with the constitution.

The court may order a review of the ballots, including a recount, in order to reach a decision.