Ugandan Opposition leader Kizza Besigye (right) and his Kenyan counterpart Raila Odinga. FILE/PHOTO
|Will lightning strike twice for Raila where Besigye has been denied?
What you need to know:
- Petitions. Mr Raila Odinga’s hopes of becoming Kenya’s president depend on the Supreme Court after he challenged Mr William Ruto’s victory.
- The grounds Mr Odinga has raised are similar to those that President Museveni’s opponents have always raised, only for Ugandan courts to toss them out on grounds that the malpractices aren’t enough to significantly alter the outcome of the election.
In what could prove to be another test for the Kenyan institutions, former presidential candidate Raila Odinga this week challenged in the Supreme Court of Kenyan the results of the recently concluded elections, insisting that William Ruto’s victory was a work of fraud orchestrated by the Independent Electoral and Boundaries Commission (IEBC).
Four years ago, the Kenyan Supreme court caused shockwaves across the globe when at the behest of Odinga became the first judiciary in Africa to annul a presidential victory, and most remarkably the incumbent Uhuru Kenyatta was on the losing end.
Petitions challenging presidential elections have been challenging not only in Africa, but also elsewhere where institutions are said to be independent.
The American presidential race of 2000 that pitted Al Gore, the incumbent democrat vice president, against Republican George W Bush went to the US Supreme Court which left a lot many questions unanswered.
“The bitter taste left in the mouths of many Americans was captured most aptly in the title to Alan Dershowitz’s book Supreme Injustice, in which he described the 36 days of the election saga as among the most ‘confusing, exhilarating, nerve-wracking, educational, divisive, uplifting, and depressing’ in the recent history of the US. The election ‘was a wild ride for the candidates, their supporters, and a fascinated world,’ as Americans were exposed to ‘a high-stakes civics lesson on a subject about which most Americans had strong feelings but little prior knowledge,” writes Prof Joe Oloka-Onyango in his book When Courts Do Politics: Public Interest Law and Litigation in East Africa.
The Kenyan Supreme Court in the 2013 presidential petition (Raila Odinga vs Uhuru Kenyatta) pointed out the uniqueness of a presidential petition.
“… although the petition is filed by individuals who claimed to move the court in their own right, the constitutional issues are of a public nature—since such an election is of the greatest importance to the entire nation,” the justices ruled.
For East Africa, the 2017 4-2 decision by the Kenyan Supreme Court to cancel Kenyatta’s victory on grounds that the election “was not conducted in accordance with the constitution and … is invalid” set a precedent.
“The discrepancies were widespread,” then Kenyan Chief Justice David Maraga said. “These discrepancies affected the integrity of the elections.”
Philomena Mwilu, Kenya’s Deputy Chief Justice, in analogy then referred to the entire electoral process as “a matatu,” referencing Kenya’s reckless, law-breaking minibuses after approximately 10,000 paper documents from polling stations, each containing the documentation of anywhere from dozens to hundreds of votes, went missing when the results were announced.
The justices were livid after IEBC disobeyed a court order demanding that it grant access to its computer servers so they could be scrutinised.
This refusal, Justice Mwilu said, led the court to “accept claims by the opposition that the computer system had been infiltrated and compromised and the data interfered with, or that the IEBC officials interfered with the system themselves”.
Borrowing a leaf
Even in this year’s petition, Odinga seemed to borrow a leaf from his 2017 petition because, together with his running mate Martha Karua, they have asked the Supreme Court led by Chief Justice Martha Koome to issue an order for scrutiny and forensic audit of the Kenya Integrated Elections Management System (Kiems) kits, the IEBC portal and the presidential election forms, including Forms 34A, 34B and 34C.
To sow more doubt into the election, the pair has alluded to foreign interference by seeking an order to summon Director of Criminal Investigations George Kinoti to produce statements, photographs, reports, equipment, laptops, phones, and other gadgets, and any other material connected/related to the conduct of the elections and found in possession of Venezuelan nationals arrested at Jomo Kenyatta International Airport.
Mbabazi petition
Odinga’s not the first presidential candidate to ask for an audit of an election. In 2016, Amama Mbabazi in his petition challenging his former ally President Museveni’s victory asked the Electoral Commission (EC) to disclose the image clone of the Biometric Voter Verification System [BVVS], database, electronic results transmission, and dissemination system.
Mbabazi said it was “important to produce such information in order to “add up and tally the number of votes cast for each candidate as recorded in the declaration of results (DR) forms for ascertainment of the final result in comparison with that announced and declared by the second respondent [Electoral Commission].”
Mbabazi also asked for the disclosure of the date on the BVVK [Biometric voter verification kit] for each polling station and the BVV database on a national basis to prove the number of voters declared by the Electoral Commission was materially different from the number of voters recorded on BVV database.
“The number of voters declared by the second respondent included numbers of pre-ticked ballot papers stuffed at various polling stations and post-ticked and stuffed ballot papers in favour of the first respondent in Kiruhura, Sembabule, Bundibugyo, Kasese, Gulu, Lira, Kisoro, Arua, Apac, Moroto, Mpigi, Ntungamo, Pallisa, Rukungiri, Nakasongola, Kamwenge, Sironko, Isingiro, Kanungu, Rakai, Kaabong, Nakaseke, Amuru, Gomba, Kyankwanzi, Butambala, Rakai, Soroti, Luweero, Mubende and Serere, inter-alia,” the petition said.
Unlike the Kenyan Supreme court which punished the IEBC for not granting it access to its computer servers, the Ugandan Supreme Court didn’t order to an audit of the process and to rub salt into the wound, the nine justices admitted that there was evidence that some of the BVVK machines were not efficient and some did not work at all, however, they adjudged that the principal document used to identify voters was the voters’ register.
“It is, therefore, our finding that the use of the BVVK did not, in itself, constitute noncompliance under the PEA [Presidential Elections Act] and it did not disenfranchise voters,” the justices led by then Chief Justice Bart Katureebe said.
While under the Uganda Constitution, there is a lot of vagueness under Article 61 which tasks EC to organise, conduct and supervise regular, free and fair elections and referenda without giving specifics of what amounts to “a free and fair”.
Article 88 of the Kenyan constitution, on the other hand, stipulates what a free and fair election is – voting by secret ballot; free from violence, intimidation, improper influence or corruption; conducted by an independent body – thus giving petitioners a chance to ably challenge results that don’t meet the set criteria.
“When you are determining an issue against well-articulated parameters, the assessment is much more objective and not subjective,” constitutional law expert Peter Walubiri, who represented former Forum for Democratic Change (FDC) candidate Kizza Besigye in both his presidential petitions (2001 and 2006) says. “If they say they have to be this standard, then it’s very easy to measure the outcome of the election against that detailed standard.”
Under Article 88 of the Kenyan constitution, for the election to be considered free and fair, IEBC is tasked to ensure that – whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent – the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station, and the results from the polling stations are openly and accurately collated and promptly announced by the returning officer.
Ugandan laws on free, fair election
But in Ugandan laws, there is no breakdown of what amounts to a free and fair election.
“In the law, it’s down to judges to determine what amounts to that [free and fair election],” Walubiri says. “They have developed both a substantive and quantitative test and the application is never that uniform. The idea that the breach must affect the results in a substantive manner can be subject to subjective determination.”
The “substantiality test” that Mr Walubiri is referring to is the requirement that for electoral transgressions to warrant a nullification of a presidential election, the petitioner should prove that he had a good chance of winning or the declared winner had no chance of winning if the proved transgressions had not happened.
It is what was used to dismiss both Dr Besigye’s petitions despite proving most of their allegations against the conduct of the election.
Besigye’s petition of 2001
In Dr Besigye’s presidential petition of 2001, then Chief Justice Benjamin Odoki found that EC did not efficiently compile, maintain and update the national voters register and voters rolls for each constituency for the presidential elections and thus violated the principles of registration of voters, fairness and transparency.
In the same petition, Besigye’s legal team insisted that contrary to Ugandan laws, EC agents or presiding officers in the course of their duties and with full knowledge that some people already voted allowed the same people to vote more than once, an argument that Justice Odoki agreed with.
“I find the evidence adduced by the petitioner [Dr Besigye] on this allegation convincing and I accept it despite denials by evidence from the respondents [Museveni and EC]. The allegation of multiple voting in several polling stations has been proved; it violated the principles of equality and fairness,” Justice Odoki ruled.
Justice Odoki said although the evidence on allegation of pre-ticked ballot papers was scanty, he believed Besigye had proved to his satisfaction that “some people” pre-ticked ballot papers and put them into ballot boxes or marked ballot papers for other voters to use for voting, an action he said violated the principles of voting by secret ballot and transparency.
“The evidence adduced on ballot stuffing is credible although some are exaggerated and based on hearsay. There is sufficient evidence to support the allegation. My finding is that the petitioner [Besigye] has proved to my satisfaction by the evidence adduced that the 2nd respondent’s agents [EC] failed to comply with the provisions and principles of Section 30(7) of the Act and that there was a ballot stuffing as this infringed the principles of fairness and transparency,” Justice Odoki ruled.
The judge also accepted Besigye’s evidence of security operatives intimidating his agents and operatives describing the evidence as “detailed, consistent and credible”.
“The denials and explanations in the respondents’ evidence have not sufficiently rebutted the various allegations of intimidation made by the petitioner. It is not disputed that the army was deployed throughout the country at the time of voting. It is not also disputed that PPU [Presidential Protection Unit] was stationed in Rukungiri throughout the period of the election campaign and during the polling,” Justice Odoki ruled.
“I find that the highest concentration of intimidation, violence, and harassment took place in Rukungiri, Kanungu, and Kamwenge. The intimidation interfered with the petitioner’s campaigns in those districts. In Rukungiri and Kanungu, it was perpetuated mainly by PPU. In Kamwenge, it was done by UPDF soldiers. The intimidation of agents and supporters extended to closing branch offices and tearing of posters, dispersing of consultative meetings and rallies, abduction, arrest, and causing injury or death to agents and supporters. On polling day, intimidation consisted of ordering voters to vote for the 1st respondent [Museveni] and harassing petitioner’s [Dr Besigye] polling agents.”
Despite agreeing with Besigye on those grounds, Justice Odoki joined the majority of three to two, in dismissing the petition on grounds that the retired Colonel had not proved to the satisfaction of the court that the transgression by EC and Mr Museveni affected the result of the election in a substantial manner.
Besigye’s petition of 2006
When Besigye, once again, challenged Museveni’s victory in 2006, still the judges used the “substantially test” to foil his petition even when he had proved grounds such as the disenfranchisement of voters therein.
“In my view, 153,000 people, whose deletion is indeed reprehensible, is too small a number to affect the result of the election in a substantial manner, even if they had all belonged to one candidate, which was not proved. I am satisfied that this non-compliance did not affect the result in a substantial manner,” Justice Bart Katureebe, who would later on become Uganda’s Chief Justice in 2015, infamously ruled in dismissing Dr Besigye’s petition of 2006.
1980 elections
The decision by Uganda’s judges not to rule against the incumbent president can be traced back to 1980 when the country organised its first post-Independence elections which Uganda Peoples Congress (UPC) won amid claims of vote rigging.
Nobody bothered to challenge Milton Obote’s election in court. Part of the problem was that Obote did not stand in any constituency, but became president by virtue of his leadership of UPC.
In any event, as the law had made no provision for challenging a presidential election, such a petition would not have gone far.
Several disenfranchised candidates went to court to challenge their own individual losses of parliamentary seats, especially those who stood as DP candidates, Prof Oloka-Onyango writes.
“However, not a single case was decided against an incumbent from the ruling party, and the decisions made offer a fascinating portrayal of judicial politics in Uganda during this period. Judicial nonchalance and compromise were so high that in one instance, a petition filed shortly after the election had still not been decided five years later—at which point a new election would have been scheduled. Any serious use of the courts to mediate over elections had to await the ascendance to power of Museveni’s National Resistance Movement.”
