SAMSON’S TAKE: THE ADMIRABLE SPEEDY KENYAN ELECTION DISPUTE TRIAL

Samson’s Take: The admirable speedy Kenyan election dispute trial

Source: Ghana|Samson Lardy Anyenini
Date: 2nd-september-2017 Time:  3:42:23 pm

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We have often quoted with excitement that justice is sweet when it is swift or that justice delayed is justice denied. What we always do need to be reminded of also is that it is equally the case that justice hurried could be justice buried. Notwithstanding the obvious potential shortcomings, with the 14-days expeditious conduct of election dispute adjudication in Kenya, the speedy trial is admirable nonetheless.    

The 6-panel Supreme Court has just delivered its verdict on the petition by opposition leader Raila Odinga and another challenging the outcome of the August 8 2017 presidential elections in that country. A 4-2 majority decision (detailed reasons expected in 21 days of the summary verdict) upheld the petition that the elections were not conducted in accordance with Kenya’s constitution and election laws, and also that there were irregularities that render the outcome a nullity. The court consequently ordered a re-run within 60 days from Friday September 1, 2017.

  Many have applauded the speed and are asking why it takes Ghana 8 long months to deal with a similar petition. My take today isn’t about the substance of the judgment. The substance of the majority decision, like the 2013 decision, in my view will not compare to that of Ghana’s Supreme Court in 2013 – the historic election petition brought by Nana Akufo Addo and others. My respectful view is that the dissenting opinions by the two justices generally make much better substantive sense of justice than what appears to be the procedural justice bereft of the essential quality of material probe required in the circumstances. The point is that of the de minimis rule which will dictate that the will of the voter should not be so easily vexed by a court unless the proportion of votes in contention, if annulled, will materially change the declaration by the elections management body. Though, the court didn’t find Uhuru Kenyatta guilty of any misconduct, it has set a significant precedent to signal to thieving incumbents that the judiciary will be bold to overturn clearly hugely tainted or stolen mandate. It is therefore expected that politicians will endeavour to keep to the rules of fair-play in elections. The question however remains would a recount, instead of rerun not be a most prudent, inexpensive resolution?

I had the rare privilege to recommend to the 2016 Annual Chief Justice’s Forum changes to Ghana’s election laws and rules so parliamentary election petitions could be dispensed with within 30 days and 80 days for presidential election petitions. There were some six groups, each led by a justice of the Supreme Court including current Chief Justice Sophia Akuffo that subjected that presentation to scrutiny with one objecting on grounds of the need for sufficient time for lawyers and judges to do a quality job with huge cases like presidential election petitions. It is understood that work is ongoing towards changes to achieve reasonable speed in election dispute trials in Ghana.

The problem really is that, whereas the Constitution and presidential election petition rules (C.I 74) together provide for specific time limits for each process from filling the petition to time for delivery of judgment after the trial, they do not do same for the hearing/trial session. The rules left the period for hearing to a rather omnibus provision that “the Court shall inquire into and determine the petition expeditiously”.

  • Petition is to be filed within 21 days after the results have been declared by the EC;
  • Respondents are to file their Answer within 10 days of being served with the Petition;
  • Hearing is to start within 15 days after service of Petition (during which 15 days interrogatories are done – presumed);
  • Decision (Judgment) to be delivered not later than 15 days upon close of hearing.  

Guess what? Ahead of the 2016 elections the judiciary came to the rescue in expeditiously dispensing with cases that threatened the elections calendar, and in one case, hearing was conducted within 3 days within two weeks and judgment delivered which saw Joseph Mensah contest in the Kwesimintsim constituency and now represents the NPP in parliament. So it is possible!

The Kenyan way is great for purpose knowing the consequences of delaying resolution of disputed elections in Africa. In Kenya, a presidential election petition must be filed within 7 days after declaration of results and the Supreme Court is to hear the petition within 14 days after it has been filed. The 14 days begin running immediately after filing of the petition as dictated by article 140 (1) & (2) of the Constitution of Kenya 2010, and the Supreme Court (Presidential Election Petition) Rules 2013.

Ghana’s constitutional provision interpreted to make the Court of Appeal the final determiner of parliamentary election petitions is fabulous and that reserving the Supreme Court as the first and final determiner of presidential election petition should also remain. But there is need for a legislation that candidates of disputed elections are not to be sworn into office during the pendency of the case.

The Ayawaso West Wuogon Constituency case was commenced soon after the December 1996 elections. The case was heard and determined in a matter of about three months. But the NPP’s George Isaac Amoo who won the case never got to taste a day in parliament as the life of that parliament had come to an end with the NDC’s Rebecca Akweley Adotey, declared by the court to have lost the election continued as the MP till the house was dissolved. Amoo’s only consolation was that he contested again in 2000 and won. This ridiculous kind of justice must be avoided at all cost. Reform!

Samson Lardy ANYENINI

September 2, 2017

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