Election dispute resolutions in Nigeria and Kenya

Last Friday, September 1, 2017 the unprecedented happened in the East African country of Kenya.  The Supreme Court of the country, led by Chief Justice David Maraga upturned the electoral victory of President Uhuru Kenyatta. The apex court said the August 8 election was fraught with irregularities and deeply flawed. According to their lordship, the Independent Electoral and Boundaries Commission, which was in charge of the vote, “failed, neglected, or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution” .The court in a majority decision of four against two justices therefore asked the IEBC to hold a re-run election within 60 days.  Since that news broke, I have been privileged to analyse the import and implications of the judgment on different media platforms. I have featured on programmes on Nigerian Television Authority, Radio Nigeria, Arise Television, Raypower 100.5 FM and   African Independent Television.

Since that epochal judgment was delivered last Friday, a lot of commentators and analysts have been pouring encomiums on the Kenyan judiciary while castigating the IEBC and the election observers who said the election was credible and conducted according to international best practices. Many have even said that Nigerian judiciary should learn from their counterpart in Kenya. Not so fast! I dare say that while the action of the Kenyan Supreme Court is noble and commendable, I will rather prefer us sticking with our own election dispute resolution mechanism than copying that of Kenya. It is important to note that each country has its own peculiar history shaping its laws.

There is need for Nigerians to know that the entire court process from filing to delivery of judgment took two weeks. That was possible because the Constitution of Kenya in Article 163 (3)(a) says “The Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140.” According to Article 140 (1) of Kenyan Constitution:  “A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election. (2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final. (3) If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.”  This is a supersonic election dispute resolution mechanism!  

Little wonder that Engr Raila Odinga never got justice in the three previous times he has filed petitions at the country’s Supreme Court. How much evidence can a serious petitioner garner within one week of conduct of election? Kenya has 40,883 Polling Stations and if a petitioner had to prove fraud in all or majority of those units as our own system here requires, not only will it be practically impossible to collect credible evidences and assemble witnesses within that timeframe. It will also be impracticable to prove electoral heist beyond reasonable doubt in 14 days specified by the Kenyan law. It would be recalled that Odinga has so much lost faith in the Kenya judiciary that he said initially after the August 8 election that he will not go to court but was hoping for United Nations intervention. Thankfully, he later reconsidered and subsequently went to court. Even at that, he was not confident of victory as he was as shocked and pleasantly surprised as many Kenyans by last Friday’s judicial victory.

It is important to understand Nigeria’s election dispute resolution processes. Unlike in Kenya, Nigeria’s 1999 Constitution (as amended in 2010) in section 239 (1) says that “Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other court of Law in Nigeria, have original jurisdiction to hear and determine any question as to whether - (a) any person has been validity elected to the office of President or Vice-President under this Constitution. An aggrieved candidate has a right of appeal to Supreme Court if dissatisfied with the ruling of the Court of Appeal in presidential matters.

Also, the Court of Appeal has the constitutional right to set up election petition tribunals which according to the Electoral Act 2010 in section 133 (3)(a) says shall be constituted not later than 14 days before election. Section 134 of the Act is very important to this discourse. Unlike the supersonic process in Kenya, that section of our law in subsection (1) says “An election petition shall be filed within 21 days after the date of the declaration of results of the elections.” (2)”An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.” (3) “An appeal from a decision of an election tribunal or court shall be heard and disposed of within 90 days from the date of the delivery of judgment of the tribunal.”

It is important to note that what happened in Kenya last Friday was a fluke; a flash in the pan. While I concede that it is a ‘locus classicus’ as it is said in law and an unprecedented happenstance in Africa, it is most likely not sustainable. The luck Odinga and his party, National Super Alliance had was the ability to prove in a very short time that there was electoral fraud only at the level of result collation and electronic transmission of result. According to a report in New York Times of September 1, 2017 (online edition), “Walter Mebane, a professor of statistics and political science at the University of Michigan who studies elections worldwide, volunteered to run the voting results through a computer model he developed to detect electoral fraud….he and his team found patterns that showed widespread manipulation.” Will Odinga and his party have been able to prove election manipulation in the country’s 40,883 polling stations, 290 constituencies and 47 counties in two weeks?

Lest we forget, Nigeria’s judiciary especially the top echelon (justices of the Court of Appeal and Supreme Court) has been demonstrating a lot of courage and judicial activism in election matters. What happened in Kenya last Friday nearly happened in Nigeria in 2008 when the Supreme Court in a split decision of 4 – 3 upheld the flawed presidential election of April 21, 2007. While Justices George Oguntade, Maryam Mukthar and Samuel Onnoghen held that there was substantial non-compliance with the Electoral Act 2007, however the remaining four members of the panel, namely, the then Chief Justice of Nigeria, Justice Idris Kutigi, Justice Iyorgyer Katsina-Alu, Justice Niki Tobi and Dahiru Musdapher upheld the election. Since 2007, Nigeria’s judiciary had annulled several governorship, senate, House of Representatives, State Houses of Assembly elections. That arm of government is responsible for the staggered gubernatorial election we now have in Nigeria and has assisted immensely to reduce incidences of electoral violence and deepen Nigeria’s democracy.

In conclusion, people should stop blaming election observer missions as if they are the one that conducted the election. They only reported what they saw in the areas where they deployed during the pre-election and Election Day. At the collation point they are hardly present. Now that the IEBC has fixed October 17 as the new date for the presidential rerun election in Kenya, I do hope the electoral commission will do a better job than it did on August 8. It should overhaul its system especially by taking into account factors enumerated by the Supreme Court in nullifying the earlier poll. May the best candidate win!