Judiciary want poll petitions handled at magistrate's court

The Judiciary has proposed fresh changes to the Elections Act to ensure that election petitions involving members of the county assembly or the governor are handled at a magistrate’s court.

Speaking at a breakfast meeting for editors hosted by Chief Justice Willy Mutunga at Nairobi’s Laico Regency Hotel on Monday, Court of Appeal Judge David Maraga and High Court Judge David Majanja, said it would be futile to expect speedy resolution of between 300 and 500 petitions from all over the country by the 70 judges of the High Court.

The judges, who sit in the Judiciary Working Committee on Elections Preparations, said the High Court as it is, is already “stretched in its handling of the day-to-day matters”.

“It is anticipated that with the increase in the number of electoral positions, there will be an average of 500 petitions filed challenging the validity of the elections….With the expected plethora of petitions, the High Court will not have the capacity to efficiently and effectively handle petitions within the set timelines,’ the committee noted in its latest quarterly report released on Monday.

If the changes are not implemented in law, then the Judiciary “will shut down for six months”, while it handles the cases, the judges said.

The law as it is right now prescribes that the election petitions on the validity of an election should be dealt with at the High Court “within the county or nearest to the county”.

They also want the law revised to ensure that the appeals for election petitions are heard at the High Court and determined within six months.

These appeals, they said should be filed within 30 days of the decision of from the magistrate’s court.

The Judiciary wants Parliament to expedite the changes in law. They’ve drafted a Bill to be published by Justice Minister Eugene Wamalwa.

“Unless this is passed, the High Court may grind to a halt since the normal cases have to proceed alongside the election petitions which must be determined within six months,” the committee warned in the same report.

Chief Justice Mutunga said the next elections will be “complex” and therefore the mechanisms for settling the disputes over the validity of the election should be quick.

He said the Judiciary was keen on the conclusion of the on-going vetting of judges and magistrates, because it wanted to know, the number of people that will be available to handle the petitions.

The Judiciary is confident that it will use the experience arising from the boundaries cases to ensure that the petitions are heard and determined within six months as prescribed in the Constitution.

The committee is of the view that where matters lie with other independent offices or other government organs, say the Independent Electoral and Boundaries Commission, then the Judiciary will not be involved.

“An important lesson from recent decisions is that duplication of roles is avoided and the courts will be freed to handle disputes expeditiously,” the report noted.

The Chief Justice said the Judiciary will explain to the public and engage all presidential aspirants the rules of the game and the process, so that there are no claims of partiality.

Lawyers too have been warned that their delaying tactics of calling for adjournments, making unnecessary applications, or stays, will be “regulated and discouraged”.