Supreme Court approach to electoral adjudication must be remedied by law change

In discussing the nature of precedent in English Law, Sir John Salmond posits that: “a precedent… is a judicial decision, which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding as between the parties before it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large.”

The rule is expounded even more clearly by Prof John Chipman Gray, the acclaimed professor at Harvard Law School: “It must be observed that at Common Law not every opinion expressed by a judge forms a judicial precedent. In order that an opinion may have the weight of a precedent, two things must concur: it must, in the first place be an opinion given by a judge, and, in the second place, it must be an opinion the formation of which is necessary for the decision of a particular case…”

The ratio is essentially the abstract legal reason at the back of which a particular outcome is arrived at by the courts. The outcome of a case therefore turns on the ratio decidendi and not on every opinion in a judgement. The court’s analysis of the legal arguments and submissions of parties while essential reading, does not constitute the principle of law which once abstracted the force of law equal to an enactment of Parliament, and can only be clarified or overturned by the Legislature.

The Supreme Court of Kenya handed down its detailed judgement on a petition challenging the election of President Kenyatta on 20 September 2017. By a 4-2 majority, the court invalidated the presidential election. It must be understood that hitherto, the weight of legal precedent in electoral law across the Commonwealth has always favoured the proposition that an election would be upheld absent profound levels of irregularities and illegalities that impact the outcome; a situation described by the Ugandan Judge Justice Professor Lilian Tibatemwa Ekirikubinza, as a ” spurious imitation of what elections should be.”

This is the proposition that is now embodied in statute, namely section 83 of the Election Act, 2011. By this provision, an election can be nullified if it was not conducted in accordance with the principles laid down in the constitution and the relevant written law. Secondly, it can be nullified if the failure to comply with the relevant written law affected its result. Kenyan Legislature, therefore, created a dual basis for invalidation: non-compliance with constitutional principles, or that elections were so tainted with irregularities that materially affected the result.

In annulling Uhuru’s election, the SCoK departed from this precedent and formulated a new bold but disturbing principle of law (ratio decidendi) which emerges as one combs through the majority’s 169 paged decision, namely that: under Kenya’s Constitution and law, if the electoral management body (IEBC) fails to transmit results of a presidential election according to the technological roadmap set out in the law and using the stipulated forms and formats, then notwithstanding that no breaches of the law was witnessed in relation to voter registration, voter identification, actual voting and no matter the accuracy of the vote count, the election ought to be invalidated.

This principle is worrying in several respects. First, it privileges a particular process over and above all the other crucial processes that are an indication of democratic elections: voter registration, which in our case enfranchised over 19 million odd voters, nearly half of whom first-time youthful voters is ignored; voter identification on polling day which was a spectacular success from the observation of credible institutions such as ELOG and which saw no reports of persons registered being denied voting is trashed; and, most crucially, the actual voting itself that took place across 40,883 polling centres in an environment of peace, whose votes were counted and results declared, is given no credence.

How can this new legal proposition be considered democracy-affirming?

Second, this principle while clothed as protective of the constitutional dictates of free, impartial, neutral, efficient, accurate and accountable election places the electoral management body in a situation where its overall performance is only gauged against the performance of a technological system.

As a consequence, the court allowed a technological system to trump peoples’ free expression of democratic preference. Further, by mandating a certain character of forms for transmitting election results, the precedent ignores clear language of the Interpretation & General Provisions Act (Chapter 2 Laws of Kenya) whose section 72 is clear that “Save as otherwise expressly provided, whenever a form is prescribed by a written law, a document or instrument which purports to be in that form shall not be void by reason of a deviation therefrom which does not affect the substance of the instrument or document, or which is not calculated to mislead.”

Given the incongruity presented by SCoK’s unfortunate precedent, the re-run elections set for 26 October 2017 must not be allowed to run under this regime of law without parliamentary intervention.

(Dr Sing’Oei is an Advocate of the High Court of Kenya and a Legal Advisor, Executive office of the Deputy President)

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