Legal experts warn that court cases could derail next elections

Legal experts are warning that the General Election could be blocked by sensational court cases if the current trend continues.

Presidential contenders Prime Minister Raila Odinga, his two deputies Uhuru Kenyatta and Musalia Mudavadi, Vice-President Kalonzo Musyoka and Eldoret North MP William Ruto have been dragged to court where they are facing potentially damaging cases that could curtail their bids.

Analysts argue that radical rulings from a Judiciary struggling for acceptance from a skeptical public are to be expected as the clock ticks to the March 4, 2013 General Election.

In the current by-election campaigns, courts raised the red flag over the political process when they issued orders to block ODM and The National Alliance (TNA) party nominees for Ndhiwa and Kajiado North respectively.

The court decisions almost locked out the TNA nominee for Kajiado North Moses ole Sakuda and Mr Augustinho Neto who has been nominated by the ODM to run in Ndhiwa. The two were later rescued after the orders were lifted at the last minute.

In the case against the five presidential aspirants, the petitioners want the Independent Electoral and Boundaries Commission barred from accepting their nomination.

The case before Justice Isaac Lenaola filed by Mr Patrick Njuguna, Mr Augustino Neto and Mr Charles Omanga is seeking orders to have the five compelled to provide information, documents and other relevant materials “to assist them and the court” to make inquiry, publicly examine, cross-examine and assess their eligibility and their competence to hold public office.

The broadened constitutional freedom in Kenya could trigger electoral pandemonium given the increasing desire by various parties to use the courts to pursue their interests.

Law Society of Kenya chairman Eric Mutua on Saturday warned that the trend was disturbing but stated that political parties must proceed with care to ensure they are within the law in nominating candidates who fit the bill to represent them in the elections.

“Why are we ending up in situations where people are moving to court to block certain nominees or potential nominees from contesting? This is the question we need to ask ourselves now,” Mr Mutua said.

He said the court cases were being filed as a result of the increasing awareness among Kenyans who are appreciating the provisions of the Constitution.

But the law society chairman warned that the courts must be careful to ensure that legitimate political processes are not obstructed by frivolous prayers.

“Political parties must wake up to the reality that Kenyans are aware of their rights and that nominations must be conducted fairly and in accordance with the Constitution,” he said.

He warned that political parities risked being blocked from presenting candidates on constitutional and technical grounds both by courts and the electoral commission.
According to Senior Counsel Paul Muite, courts have confused the whole process by issuing contradicting rulings every time arbitration is sought from them.

“The major problem we are finding ourselves in is a foul precedence where courts issue contradictory injunctions. The Judiciary is not appreciating that they are supposed to be the instruments of last resort after all other arbitration avenues available have been exhausted,” Mr Muite said.

But he predicted a situation where thousands of cases would end up in courts due to the mishandling of party nominations.

“As things are in Kenya no political party is logistically and financially capable of delivering a proper nomination. What parties can do is involve the electoral commission in conducting their primaries,” Mr Muite said. According to him, nominations conducted without the involvement of an independent authority such as the electoral commission are most likely to be contested in court.

Former executive director of the Committee of Experts on Constitution review Ekuru Aukot urged political parties to use the cases that have arisen from the current by-elections as case studies on how to avert legal troubles in the General Election.

“Political parties must know that they are being watched and that it will be difficult for them to get away with silly mistakes at the nomination level,” he said.

Some 20,000 Kenyans are expected to seek various seats. So far ODM has announced that over 6,000 people have expressed interest in the party’s backing for various positions while the United Republican Party says 2,500 have indicated interest in its backing.

Other political parties are yet to provide data on the number of their members who want to contest various seats on their tickets.