Quest for electoral justice is crucial

A voter casts his ballot at Kosachei Primary School Polling Station in Turbo Constituency, Uasin Gishu County, during the repeat presidential poll on October 26, 2017. In democracies, electoral justice plays a decisive role in the stability of the political system. PHOTO | JARED NYATAYA | NATION MEDIA GROUP

What you need to know:

  • There is a need for an elaborate electoral justice system to ensure a fair playground for all participants.
  • An effective electoral justice system is crucial in ensuring a free, fair and genuine democratic process.

The push by the opposition for electoral justice deserves closer scrutiny and attention.

An effective electoral justice system is crucial in ensuring a free, fair and genuine democratic process.

In democracies, electoral justice plays a decisive role in the stability of the political system and adherence to the legal framework, and contributes to the consolidation of democratic governance.

The role of electoral justice, although not new, has become recognised as a key factor in democracies, whether emerging or established.

The world over, no election has been without irregularities and this is confirmed by the numerous reports.

There is a need for an elaborate electoral justice system to ensure a fair playground for all participants.

DISPUTE RESOLUTION
The national electoral justice system is responsible for the organisation, management, and control of electoral processes, defined as all of the acts legally regulated and designed to enable the authentic expression of the political will of the people.

Electoral justice encompasses both the means for preventing violations of the electoral legal framework, and the mechanisms aimed at resolving disputes that arise from the non-observance or breach of the electoral law.

It includes both formal and informal mechanisms, such as alternative electoral dispute resolution (AEDR) mechanisms.

An electoral justice system should be reviewed periodically to ensure that it fulfils its function of guaranteeing the holding of a free, fair and genuine poll, in keeping with the law.

PREVENTIVE MEASURES
An integrated, comprehensive and effective approach to designing and implementing an electoral justice system is only possible if the three periods of the electoral cycle are taken into account: Pre-electoral, electoral and post-electoral.

Electoral challenges can be categorised as administrative, judicial, legislative and international.

There may be many criteria for classifying the various electoral challenges.

Electoral Justice: The International IDEA (Institute for Democracy and Electoral Assistance) Handbook on Electoral Justice, for example, adopts a formal criterion to determine the type: The nature of the organ that hears and resolves the challenge.

It is important that every electoral justice system establishes means or measures to prevent or avoid electoral disputes.

Some democracies place greater emphasis on preventive measures, others on corrective measures or electoral challenges, and still others on punitive measures or mechanisms for adjudicating liability.

COURTS
In electoral justice, “principles” mean the supreme and paramount ethical/political values of a legal order, sector or an institution.

They set a standard or inspire those to whom they are directed – either the voters, in general, or the electoral dispute resolution bodies, in particular.

Their observance or enforcement not only bestows legitimacy or moral or political authority, but also increases the likelihood, that they will serve their purpose.

Principles of the EDR system refer to the fundamental values that help to guarantee the holding of free, fair and genuine elections.

Further principles exist that are specific to EDRSs, such as the principle of irrevocability.

Judicial means of bringing electoral challenges are those procedural legal instruments provided for by law by which two or more conflicting parties bring before a judicial body, that is, a judge or a court, a dispute over an alleged error, irregularity, instance of wrongful conduct, deficiency or illegality in an electoral action or decision.

The judicial body, as a superior third party and an organ of the state, determines the dispute in a final and impartial manner

COMPLEMENTARY ROLE
A specialised electoral court contributes to the quality and appropriate timing of decisions and centres the attention of the political forces in the selection of its members, helping to give them adequate guarantees for their independence and impartiality.

Informal or alternative electoral dispute resolution mechanisms are not meant to replace formal systems, but to play a supportive role, especially when the later face credibility, financial or time constraints.

In Kenya, this should be instituted from the grassroots right through the national level.

Dr Gitu (PhD), lecturer at the Technical University of Mombasa (TUM), is a governance expert. [email protected]