Losers in polls must pursue legal dispute resolution


In every competition, including a presidential election, a winner and a loser is inevitable. Among the eight presidential candidates cleared by IEBC, only one shall be Kenya’s fourth president. The rest will be have lost the race, there is no silver or bronze. The tragedy is if the losers insist they have won and compound it by refusing to follow due process of law in seeking electoral justice.

Worthy leaders accept the voters’ verdict and if there is genuine dispute, resort to existing lawful dispute resolution mechanisms not the rule of the jungle. If the just concluded party nominations fiasco is anything to go by, we have a reason to worry as a country.

IEBC has time and again assured of free and fair elections. Let’s give it a chance. The judiciary is at its highest approval rating as vibrant, independent and credible. I therefore opine that all the presidential candidates should publicly declare that they will accept the results of free and fair elections and in case of any dispute arising, they will contest it in court.

I have keenly observed that the supporters of the leading presidential candidates (Uhuru Kenyatta and Raila Odinga) are riveted towards nothing short of a win and they cannot fathom a loss – a very dangerous mindset. In this case even if the candidates accept defeat or resort to legal process, their supporters may not. The candidates should also prepare their supporters to accept unfavourable outcome.

Mature democracies and civilized politicians accept the verdict of the electorate and if in doubt “fight” within the law. In the recent US elections, Republican candidate Mitt Romney lost to President Obama narrowly. Romney did not call for a street fight but instead telephoned Obama to congratulate him for the win and gave a concession speech. The two gentlemen thereafter met for lunch in the White House and promised to work together in shared interests for their country’s benefit even after bruising political campaigns against each other on health care, taxes and foreign policy.

Even in the most contested 2000 presidential election between George W. Bush and Al Gore, the US did not degenerate to lawlessness.

The candidates and the voters alike respected the due process and patiently waited for the courts to decide the dispute.

The Supreme Court gave the presidency to George W. Bush. The Supreme Court opinion in Bush v. Gore is one of the most misunderstood and most criticized with some arguing that the five conservative judges voted for Bush and the four liberal ones for Gore but at the end of the day, it was the decision of the court which a civilized society must respect.

The candidates are hereby challenged to pledge their loyalty to due process and civility to save Kenya the embarrassment of 2007 post-election events. To his credit, Jubilee’s presidential candidate Uhuru Kenyatta conceded defeat in 2002 when his then KANU party lost to Mwai Kibaki’s National Rainbow Coalition. Mr Kenyatta should assure us he will do the same should history repeat itself this March and other candidates to follow suit.

Under the Constitution and the Assumption of the Office of the President Act 2012, the President-elect shall not be sworn secretly in the night the presidential election results are declared. In fact he shall have to wait for at least fourteen days to enable filing of any petition.

The president-elect shall also take oath of office in public between 10am to 2pm. The heavens shall therefore not fall upon declaration of the results.

(The author is an Advocate of High Court of Kenya and Legal Consultant. Email:mchelanga@hotmail.com)

5 Replies to “Losers in polls must pursue legal dispute resolution”

  1. I wish you argued a wee bit constructively or may be it was for luck of space or is it just sheer naivety? In Kenya’s case how do you depoliticize the civil service, security apparatus etc for the incumbent or favored contestants not to have an edge over the others? As much as the judiciary may be trying to disintangle itself from the Executive grasp, recent cases where the Police were reluctant to enforce warrant of arrests and their pronouncements smacks of remote control.How do you ensure that public resouces are not used to further others’ political interests and that penalties are enforced? How do you have democracies like Italy or Israel and even India, who have had uncountable government since WWII but have continued to thrive and laws can be enforced to the letter without exception and the public will not run into the streets?. This what I expected to read in your blog – a well reasoned piece on why there will always be outcry of rigging whether justified or not and root causes of this discontentment which at times may be historical – is it sheer perception or reality and how do you manage it?

  2. 1)
    In the US, blatant rigging is minimal, even negligible. 2) In the US, the
    president is not directly responsible for resource allocation. 3) In developed
    countries (includes Japan, Italy) the working of systems (even the civil
    service) is independent of politics and who is in power. 4) In the US,
    the judiciary and the electoral commission are always independent.

  3. In mature democracies criminal suspects cant think of being candidates! What happens if somebody goes to court claiming integrity chapter was not met by some candidates and thus, the elections would been null and void?

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