, NAIROBI, Kenya, Jan 22 – Former Chairperson of the Independent Review Commission, Johann Kriegler, has termed Kenya’s electoral system as one held captive by a deeply entrenched culture of negative ethnicity.
Kriegler who spoke Monday during the opening of a Law Society of Kenya colloquium on last year’s presidential petitions said the country had however developed one of the most sophisticated electoral regimes, something he said has enhanced poll management.
But according to Justice Kriegler, suspicions between rival camps have eroded advancements made in poll management with perceptions of election rigging gaining prominence.
“You’ve not abandoned the suspicions, animosities and the mistrust based on ethnic difference your colonial masters left you. You still have that legacy where you say popularly that a Luo can become President of the United States but not of Kenya,” he said.
The retired judge of the South African Constitutional Court who headed the review commission birthed out of the disputed 2007 presidential election took note of the evidently rising cost of elections in the country saying it was unrivalled worldwide.
“You have the most expensive elections in the world per capita. You evolved last year the technically most complex electoral system in the world in 2017,” said Justice Kriegler.
“With all of the safeguards and backups and technology expertise with tablets and paper deliveries of forms 34As and 34Bs – you’re the champions,” he said amid laughter by attendees at the symposium.
Justice Kriegler cited the high number of election-related litigation as a testament to the fact that elections remain highly contested in the country.
“You’re undoubtedly the world champions in election litigation. You’ve reduced elections to excuses to come to court,” he said.
The renowned judge however advised legal practitioners to keep off politics and remain true to the law while litigating in electoral petitions saying they should focus on the substance and not perceptions.
He said lawyers should always advise their clients to seek political solutions to political problems and “keep the law out of politics as far as is humanly possible.”
“As far is consistent with your conscious advice your clients to seek political solutions to political problems,” Justice Kriegler said.
The judge illustrated that the disputed 2007 presidential election that resulted into violence that left over a thousand people dead and over half a million displaced was primarily anchored on tribal divisions as opposed to the mismanagement of the election by the then chairperson of the electoral commission, Samuel Kivuitu.
“We said in our report as tactically as we could that the problem in 2007 did not lie with Kivuitu and his team or even President Mwai Kibaki and Opposition leader Raila Odinga, the problem was the political style of Kenyans,” he said.
Justice Kriegler said it was imperative that Kenyans address negative ethnicity for a long-lasting solution to divisive politics to be found.
In a statement read on his behalf during the colloquium, Chief Justice David Maraga reiterated the need to consider amendments to election laws to among other things increase the time within which election petitions are concluded.
Speaking on his behalf, the President of the Court of Appeal, Justice Paul Kihara Kariuki said the current 14-day period for hearing presidential petitions was strenuous to both judges and litigants.
“These amendments include the amendment of Article 140(2) Constitution to increase the period for determination of presidential election petitions from 14 to 30 days. The current time allocation places extreme pressure on litigants as well as the justices of the Supreme Court,” he explained.
“I recognize the need to ensure that an election dispute of this magnitude is heard with particular haste. However, the time allocation should also be reasonable and sufficient.”
Justice Kihara cited instances where other jurisdictions provide up to thirty days for similar petitions.
“Indeed, comparative requirements in other jurisdictions provide for more time. For example in Ghana, Presidential Petitions are filed within 21 days of the declaration of election results and determined within fifteen days from the close of the hearing,” he stated.
The Judiciary is also seeking to limit the number of appeals arising from election petitions to one to expedite the conclusion of election disputes in accordance with timelines set out in the Constitution.
The setting up of a two-tier system for petitions through the amendment of Article 163 (4) of the Constitution and Sections 75 (4) and 85A of the Elections Act is one such avenue the judiciary hopes it can achieve quick dispensation of electoral disputes.
“The rationale for this is that second appeals prolong litigation in election petitions and defeat the noble principle that election disputes should be expeditiously disposed of,” Justice Kihara remarked.
Justice Maraga also urged the Parliament to address gaps in the country’s electoral laws which emerged during the hearing of last year’s presidential election petitions.
Justice Maraga said the lack of clarity on what happens should a candidate in a presidential race withdraw posed an imminent danger to the country’s electoral system, prior to the 2017 petitions.
“Whereas the law is clear about what happens should a candidate die in between, the lack of specificity in regard to withdrawal leaves us with uncomfortable grey areas that require legislative attention.”
In its unanimous decision upholding the October 26 presidential election, the Supreme Court under the leadership of Justice Maraga said in a detailed ruling on December 11 that there ought not to be fresh nominations following the nullification of the August 8 presidential election.
“The nominations that took place on 28 and 29 May 2017 remained valid and no other nominations were required for the October 26 election,” the apex court decided.
In the expanded verdict of a ruling delivered on November 20 ruling, the court also explained that Opposition leader Raila Odinga’s withdrawal from the fresh presidential election on October 10 warranted no cancelation of the exercise as NASA had claimed.