East African judges want time for election petitions extended

The High Court in Nairobi. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • According to a publication by Kituo cha Katiba, legal regimes in Uganda, Kenya and Burundi allow presidential results to be challenged.
  • However, results have only been tested comprehensively in Uganda and Kenya.

Senior regional judges and lawyers have called for a 90-day transition period after presidential poll results are announced to allow courts adjudicate the disputes effectively.

This is one of the wide-ranging recommendations made in a new publication, A Comparative Review of Presidential Election Court Decisions in East Africa.

The other proposal is the demilitarisation of political space in Uganda.

According to another publication by Kituo cha Katiba: Eastern Africa Centre for Constitutional Development legal regimes in Uganda, Kenya and Burundi allow presidential results to be challenged. However, results have only been tested comprehensively in Uganda and Kenya.

Tanzania is not the subject of this review because the law there does not provide for petitions.

The publication reviews the lead presidential election judicial decisions in Uganda and Kenya and assesses the performance of courts, highlighting challenges faced and the role and impact of stakeholders.

Uganda had the first presidential election petition in 2001, and the second one in 2006. Both were filed by Kizza Besigye against President Yoweri Museveni.

The Kenyan case was filed by Raila Odinga in 2013. In both, the petitioners lost.

According to the publication, a more “reasonable” time should be allowed to provide for a smooth transition following elections.

“This will allow sufficient time for more considered and credible presentation and adjudication of presidential election disputes,” the authors say.

They add that at least 20 days should be allowed for aggrieved parties to present petitions as opposed to the current 10 days in Uganda and seven in Kenya.

“This will allow for better collection and presentation of evidence required to establish a sound case, especially in light of the high standards of proof that courts have adopted,” the 168-page publication says.

The courts should be allowed at least 60 days to hear and determine the disputes. This, the authors say, would similarly allow for a more deliberate consideration of election petitions in keeping with the gravity of such disputes.

The publication suggests that parties to the petition should be permitted to call witnesses and cross examine them. This would allow the courts to assess the credibility of evidence presented rather than solely relying on affidavits.

“This, too, would be in line with the importance of the stakes involved in an election for the office of the president. The losing candidate(s) and the people who voted for them might accept the court’s decision if they feel it was reached after a rigorous process,” they say.

While the judges of the Ugandan Supreme Court unanimously agreed with the petitioner that electoral laws had not been followed, the court held that it had not been proved that the irregularities affected the outcome in a substantial manner.

In Kenya, the court said the conduct of the election could not be said to have been perfect though the petitioner did not prove that the irregularities disturbed the results.

The book says though Kenya and Uganda have had constitutional reforms, all elections based on a multi-party system have been flawed.

In Uganda, the constitution is clear, specifying the power to dismiss a petition. This is not the case in Kenya, where these powers are derived from a deductive reading of the law.

“In scrutinising the petitions, we followed the meanings and importance which judges assigned to three concepts: the burden and standard of proof; substantive justice and substantial effect. The unanimous decision of the two courts were heavily guided by the philosophy that in a democracy, the election of a leader is the preserve of the public; and that courts should not tamper with results,” the authors say.