Constitutional Change of Government through Elections.

1. Introduction
One of the main characteristics of a functioning democracy is the peaceful, periodic transition in
office through free and fair elections, which are perceived as legitimate by the public. The
consolidation of democracy requires a functioning election process, which, in turn, depends upon
an adequate institutional Rule of Law framework, transparent regulations, court rules and
procedures and, perhaps more importantly, fully trained, competent judges and personnel with
integrity. A proper election requires full attention to be given to the five core aspects of the
process:

 preparatory activities;
 campaigning and information dissemination;
 voting;
 counting and
 dispute resolution.

Dispute resolution is the climax of the election process. The legitimacy of the election process
depends in part on the objectivity and impartiality of dispute resolution mechanisms. This
objectivity and impartiality is key to building public confidence in democratic institutions and in
the election process.

It is only when citizens view the election process as legitimate and sound that they will
participate in it. One of the on-going challenges for emerging and established democracies, such
as Kenya, is to master the election process and ensure that any dispute challenging “election
results” is resolved in a timely, fair and effective manner

1.1. The 2010 Constitution

The Constitution endowed all sovereign power on the people of Kenya, 1which power could be
exercised either directly or through democratically elected representatives.2 In addition to the
Constitution, the Elections Act, 2011, The Independent Electoral and Boundaries Commission
Act, 2011 and the Political Parties Act, 2011 were all enacted so as to provide a reformed legal
and administrative environment for the conduct of elections

1
Article 1(1) Constitution of Kenya, 2010
2
Article 1(2) Constitution of Kenya.
The Constitution introduced key reforms relevant to the electoral process. Firstly, it clearly
provides principles that govern elections. 3 All elections are to be free and fair, 4 free from
violence,5 and administered in an impartial, neutral, efficient, accurate and accountable manner. 6
Through this, while all past elections had been judged against the standard of whether they were
free and fair or not, the Constitutional provisions now clarified what free and fair would
comprise of in the Kenyan context.

Secondly, it introduced the devolved system of governance. 7 As such, the electorate during the
2013 General Election cast votes for six positions;

a) President: article 136 of the Constitution provides that the president shall be elected in a
national election that is carried out in adherence of the Constitution and any Act of
Parliament regulating presidential elections on the same day as a general election of
Members of Parliament
b) County Governor: article 180 (1) of the Constitution provides that the county governor
shall be elected on the same day as a general election of Members of Parliament.
c) Senator: article 98(1) (a) of the Constitution provides that Senate consists of forty-seven
members each elected by the registered voters of the counties.
d) Women Representative: article 97(1) (b) of the Constitution provides that membership of
the National Assembly consists of forty-seven women, each elected by the registered
voters of the counties.
e) Member of the National Assembly: article 101(1) of the Constitution provides that a
general election of members of parliament shall be held on the second Tuesday in August
every fifth year.
f) Member of the County Assembly: article 177(1) (a) of the constitution provides that
membership of the county assembly includes members elected by the registered voters of
the wards on the same day as a general election of Members of Parliament

3
Article 81, Constitution of Kenya, 2010
4
Article 81(e), Constitution of Kenya, 2010.
5
Article 81 (e) (ii), Constitution of Kenya, 2010.
6
Article 81 (e) (v), Constitution of Kenya, 2010.
7
Chapter Eleven of the Constitution of Kenya, 2010 establishes the devolved system of government and its
structure.
These was unlike the previous elections when one was required to vote only for President,
Member of Parliament and Councilor. In addition to the increase in elective positions, devolution
would also be fully implemented only after the 2013 elections.

1.2. Dispute Resolution

The constitution avails various avenues for resolution of election disputes. They include the
IEBC, The Political Parties Dispute Tribunals (PPDT), the High Court, and the Supreme Court.
Unlike the ECK, the IEBC is not limited only to the conduct of elections, but its mandate also
included the peaceful settlement of electoral disputes.

1.2.1. IEBC & PPDT

The Independent Electoral and Boundaries commission and the Political Parties Dispute
Tribunals disputes are empowered to settle disputes relating to or arising from nominations, that
is, pre-election disputes. The IEBC Dispute Resolution Committee decided over 2000 disputes
revolving around party lists and more than 200 decisions touching on internal political parties’
nominations, such as Mathew Adams Karauri v TNA.8

1.2.2. High Court

The High Court hears election petitions concerning election to the offices of County Governor, 9
Senator,10 and Member of the National Assembly.11 On the other hand any petition on the
election of a Member of a County Assembly is and determined by the Resident Magistrates’
Courts as designated by the Chief Justice.12

The High Court also have an appellate mandate in disputes from the quasi-judicial bodies. For
instance, there is a right to appeal the decision of the Political Parties Dispute Tribunal to the
High Court on matters of law and fact, and to the Court of Appeal and the Supreme Court on
matters of law.13

8
Independence Electoral and Boundaries Commission, Dispute Resolution Committee Case Digest (2013)
9
Section 75(1) of the Elections Act, 2011.
10
Article 105(1)(a) of the Constitution of Kenya, 2010
11
Article 105(1) (a) of the Constitution of Kenya, 2010.
12
Section 75(1A) of the Elections Act, 2011.
13
Sections 41(2) of the Political Parties Act, 2011
 1.2.3. Supreme Court
The Supreme Court has exclusive original jurisdiction to hear and determine disputes regarding
elections to the office of president.14 Article 140 of the constitution entitles one to file a petition
in the Supreme Court to challenge the election of the president elect. The petition must be filed
within fourteen days after the date of the declaration of the presidential election.

The Supreme Court is expected to hear and determine the petition within fourteen days. Its
decision is final and cannot be challenged. In the event the supreme court finds that the election
of the president elect to be invalid, a fresh election will be conducted within sixty days after the
determination. The supreme court can either affirm or annul the election of president elect.

1.2.3.1. Case laws

Since its inception, the supreme court has had the opportunity to determine three presidential
election petitions.

1.2.3.1.1. Raila Odinga v. The Independent Electoral and Boundaries

Commission and three others.15
This election petition was the primary claim in a set of three separate petitions which were
consolidated and resolved within its ambit. The first petition, brought by Moses Kuria, Dennis
Itumbi and Florence Sergon, sought to determine what constituted a rejected vote, and whether
rejected votes should have been counted when determining the total number of votes cast. 16 The
second, filed by Gladwell Otieno and Zahid Rajan, sought to invalidate the results of the election
based on the fact that there were numerous irregularities in voter registration, electronic voter
identification and tallying.17 The third petition, brought by Hon. Odinga, sought to invalidate the
results of the Presidential election, alleging massive electoral fraud and malpractices. 18 In the

14
Article 163(3)(a) of the Constitution of Kenya, 2010
15
[2013] eKLR
16
Petition No. 3 of 2013 (filed on 14th March, 2013). All the petitioners were identified as second Petitioner in the
consolidated petition.
17
Petition No. 4 of 2013 (filed on 16th March, 2013). Both petitioners were identified as the third Petitioner in the
consolidated petition.
18
Petition No. 5 of 2013 (filed on 16th March, 2013). The petitioner was identified as the 1st Petitioner in the
consolidated petition
consolidated petition, IEBC, Ahmed Issack Hassan, Uhuru Kenyatta, and William Ruto were the
First, Second, Third and Fourth Respondents respectively.

Mr. Kuria, Mr. Itumbi and Ms. Sergon argued that the IEBC Chairman’s decision to include
rejected votes in the final tally had a prejudicial effect on the percentage votes won by Hon.
Kenyatta. They claimed that Mr. Hassan’s actions were in contravention of Articles 136(a)24
and 138(3) (c)25 of the Constitution, and Rule 77(1)26 of the Elections (General) Regulations,
2012.

Ms. Otieno and Mr. Rajan argued that the presidential election was not conducted substantially
in accordance with the Constitution, or the Elections Act and the governing Regulations. In
particular, six averments were made. The first was that the IEBC failed to establish and maintain
an accurate voter register that was publicly available, verifiable and credible as required by
Articles 38(3),27 81(d),28 83(2),29 86 and 88(4)30 of the Constitution, Sections 3,31 4,32 5,33
6,34 735 and 836 of the Elections Act, 2011 and the Elections (Registration of Voters)
Regulations, 2012. Secondly, they averred that the true number of registered voters was
unknown and, therefore, the IEBC did not have an accurate voters’ register, since it and Mr.
Hassan repeatedly changed the official number of registered voters. The third averment was to
the effect that the absence of a credible Principal Voter Register vitiated the validity of the
Presidential election

Fourthly, they also argued that the electoral management system adopted by the IEBC was
complex and had many shortfalls, contrary to the constitutional requirement that it be a simple,
accurate, verifiable, secure, accountable and transparent system; failed to meet the mandatory
legal requirement to electronically transmit election results; and that the failure of the electronic
system put in place by the IEBC and their failure to electronically transmit election results
affected the validity of the presidential elections.

The fifth was that IEBC and its Chairman did not discharge their obligation under the
Constitution, because the tallying and verification of the results did not happen at the polling
stations, there was no electronic transmission of provisional results, and party agents were
excluded from the National Tallying Centre. Finally, Otieno and Rajan argued that IEBC
violated the Constitution and the Public Procurement and Disposal Act, by awarding the tender
to purchase the electronic devices used in the election to an unqualified bidder who then supplied
devices that did not work properly, or simply failed, on election day.

The primary basis of the petition by Hon. Odinga was that the electoral process was so
fundamentally flawed that it precluded the possibility of discerning whether the presidential
results declared were lawful. In support of this, he made three averments. The first was that the
IEBC and its Chairman did not carry out a valid voter registration, as required by Article 83 of
the Constitution, and Section 3(2) of the Elections Act, 2011 because their official tally of
registered voters changed several times, which in turn resulted in the final total number of
registered voters differing materially from what was in the Principal Register. Secondly, he
argued that the IEBC failed to carry out a transparent, verifiable, accurate and accountable
election as required by Articles 81, 83 and 88 of the Constitution, because there were several
anomalies that occurred in the process of manual tallying, such as the votes cast in several
polling stations exceeding the number of registered voters; differences between results posted
and the results released by IEBC; and the use of unsigned Form 36s to declare the results.

Lastly, he claimed that the electronic systems acquired and adopted by IEBC to facilitate the
General Election were poorly designed and implemented, and destined to fail. Due to such
failure, IEBC was unable to transmit the results of the elections, in contravention of Regulation
8240 of the Elections (General) Regulations, 2012.

Issues
The issues for determination were: whether the third and fourth Respondents were validly
elected and declared as President-elect and Deputy President-elect respectively, in the
presidential election held on March 4, 2013 (the crux of the case), whether the presidential
election held on March 4, 2013 was conducted in a free, fair, transparent and credible manner in
compliance with the provisions of the Constitution and all relevant provisions of the law,
whether the rejected votes ought to have been included in determining the final tally of votes in
favor of each of the presidential election candidates by the second Respondent and the remedies
available

Holding
On the issue whether Hon. Kenyatta and Hon. Ruto were validly elected and declared as
President-elect and Deputy President-elect respectively in the presidential election held on 4
March 2013, the Court found in the affirmative. The reasoning of the Court, as discerned from
the judgment, was based on several reasons and factors. The first was its overall approach to the
petition in which it interpreted its role as a limited one. Put differently, the Court saw the
presidential election as a political process, which should not be seen to usurp the role of the
electorate. Further, the Court held that the voter registration process was, overall, transparent,
accurate, and verifiable; and the voter register compiled from this process did serve to facilitate
the conduct of free, fair and transparent elections.

On the issue of whether the presidential election was conducted in a free, fair, transparent and
credible manner in compliance with the provisions of the Constitution and all relevant provisions
of the law, the Court held that this was largely the case. In addition to the other findings in the
first question, the Court held that technology (which had admittedly failed in various instances)
had nevertheless not been intended to replace the traditional manual process.

On the question of whether rejected votes could be included in determining the final tally of
votes in favor of each of the presidential election candidates, the Court held that they could not.
This was based on the Court’s reading of the Constitution from a purposive approach that found
no merit in including “void ballots”, which did not confer a benefit on any candidate, in the final
determination of the electoral threshold for the presidential election.

1.2.3.1.2. Raila Amolo Odinga & another v Independent Electoral and

Boundaries Commission & 2 others.19
On 8th August, 2017, Kenya held her second general election under the Constitution 2010 of the
Constitution. Subsequently, the chairman of IEBC as the Returning Officer of the Presidential

19
[2017] eKLR
election, declared the 3rd respondent, Uhuru Muigai Kenyatta, the winner of the election
with 8,203,290 votes and the 1st petitioner, Raila Amollo Odinga, the runner’s up
with 6,762,224 votes. On 18th August, 2017, Raila Amolo Odinga and Stephen Kalonzo
Musyoka, who were the presidential and deputy presidential candidates respectively of the
National Super Alliance (NASA) Coalition of parties, running on an Orange Democratic
Movement (ODM) party ticket and WIPER Democratic Movement ticket respectively, filed this
petition challenging the declared result of that Presidential election (the election) on the
following grounds: that there were violation of the Principles Set out in the Constitution,
Electoral Laws and Regulations, that there was improper Influence, Corruption, Misconduct and
Undue Influence, that there was failure in the Process of Relaying and Transmitting Results and
that there were Errors in the Voting, Counting and Tabulation of Results

Issues
The issues for determination are: whether the 2017 Presidential Election was conducted in
accordance with the principles laid down in the Constitution and the law relating to elections,
whether there were irregularities and illegalities committed in the conduct of the 2017
Presidential Election, If there were irregularities and illegalities, what was their impact, if any, on
the integrity of the election? what consequential orders, declarations and reliefs should this court
grant, if any

Holding
Despite the approximately 1.4 million vote margin separating the top two candidates, there were
severe deficiencies in the IEBC’s management of the election, specifically noncompliance with
the electoral provisions governing the electronic results transmission system. The IEBC acted
contrary to the law when it announced presidential results solely based on the constituency-level
tally forms (form 34B), and prior to the receipt of all polling station tally forms (form 34A).

Notably, the IEBC failed to transmit results electronically from all the polling stations to the
national tallying center simultaneously with the tally forms, in violation of Section 39(1c) of the
Elections Act. In addition, the IEBC used results forms of questionable authenticity, in violation
of the law. The the failure of the IEBC to grant the petitioners sufficient access to the computer
servers at the national tally center was a violation of the constitutional requirement that elections
be conducted in a transparent manner.

Upon scrutiny of all the tallying forms, the results tally forms that the IEBC had submitted for
review and found several errors. For example, form 34C—the final national tally form for the
presidential election—had neither a watermark nor a serial number, and the form appeared to be
a photocopy. Fifty-six of the 291 constituency-level tally forms (form 34B) bore no watermark,
five were not signed by the returning officer, 31 had no serial number, and 32 were not signed by
the respective party agents. In addition, the hand-over section of 189 forms had not been filled
in, and the take-over section of 287 forms had not been filled in.

The IEBC’s failure to comply with the court order to grant access to its computer servers, user
log-in history, and the electronic results transmittal log also weighed in the court’s decision. The
failure of IEBC to provide this access ran contrary to the constitutional requirement of
transparency and verifiability of the electoral process. Accordingly, this meant that either the
IEBC’s information and communication technology system was infiltrated and compromised and
the data therein interfered with—or IEBC officials themselves interfered with the data, or the
IEBC simply refused to accept that it had bungled the transmission system and were unable
themselves to verify the data fully.

Further, the IEBC failed to respond adequately to several allegations made by the petitioner,
including claims that several results forms originated from polling stations that that had not been
published in the official gazette as required by law. Nor could the IEBC explain why there were
approximately 500,000 more votes in the presidential election than votes cast in gubernatorial or
parliamentary elections, a fact that weighed heavily against the IEBC, according to the court.

In view of the above election was not held in compliance with the Kenyan Constitution and the
electoral legal framework. Specifically, the IEBC failed to organize the election in compliance
with the constitutional requirement that all elections be “simple, secure, transparent, and
verifiable. Consequently, the presidential election was annulled
 1.2.3.1.3. John Harun Mwau & 2 others v Independent Electoral and
Boundaries Commission & 2 others,20

Two petitions were filed questioning the constitutionality and legality of the fresh presidential
election and one requesting sanctions against NASA.1The court consolidated the two petitions
challenging the legality of the results and heard oral arguments from all interested parties in an
open and transparent manner that afforded due process to all litigants. Petitioners also alleged
that the IEBC lacked the independence, neutrality, and transparency mandated by the
constitution. The petitioners argued that that the election was not held in an environment
conducive to the holding of free and fair elections, as high numbers of voters were
disenfranchised. They alleged that the low voter turnout was a manifestation of an electoral
process that lacked credibility, as evidenced by various irregularities and illegalities. These
included the appointment of returning officers declared invalid by a High Court decision,
arbitrary relocation of numerous polling stations, discrepancies in the voter turnout in the polling
station forms versus those transmitted by the Kenya Integrated Elections Management System,
various errors in the results forms, and an unreliable voter register.

Issues
The two consolidated petitions were narrowed down to eight issues for consideration, including
legal standing of the petitioners, the consequences of withdrawal of one of the candidates from
the election, the failure of the IEBC to conduct the election in conformity with the constitution
and the law by, among other things, not calling for fresh candidate nominations, violating the
principle of universal suffrage, and not holding the election in all 290 constituencies
simultaneously as required by the constitution.

Holding
On whether the law required the holding of fresh nominations was central to the petition, the
court ruled that nominations carried out for the Aug. 8 election were valid and that there was no
need for fresh nominations. The IEBC was guided by the decision of the High Court in Ekuru
Aukot’s case, which recognized the right of Aukot and other previously registered presidential
candidates to access the ballot for the Oct. 26 polls.
20
[2017] eKLR
The withdrawal of Odinga, although legally binding, did not necessitate the cancellation of the
Oct. 26 election and the calling of a new election with fresh nominations. The issue of
withdrawal from a fresh presidential election is not addressed by the constitution or the Kenya
Elections Act.107

The petitioner’s allegations of illegalities and irregularities were general in nature and effectively
rebutted by the respondents. The petitioners did not provide sufficient evidence to meet their
burden of proof that the alleged violations compromised the legitimacy and credibility of the
fresh presidential election. The low voter turnout was attributed to the active call for boycott, the
violent demonstrations, and voter fatigue. Further the violence that occurred in the opposition
strongholds was instigated by the opposition and, therefore, could not serve as the basis for
nullifying the fresh election. Moreover, according to the law, the IEBC has the legal right to
announce nationwide results of elections when it is shown that the results in the 25
constituencies where the election was not held would not affect the overall result. In view of the
foregoing the court dismissed the petition.
 BIBLIOGRAPHY

1. Statutes

Constitution of Kenya (2010)

Elections Act, 2011,

Independent Electoral and Boundaries Commission Act, 2011 and

Political Parties Act, 2011

2. Case Law

Raila Odinga & 5 Others v Independent Electoral and Boundaries commission & 3 others [2013]
eKLR

Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others
[2017] eKLR

John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others
[2017] eKLR

Mathew Adams Karauri v TNA.