KLR WEEKLY e-NEWSLETTER
 

| Issue 102| Newsletter Archive | Monday 19th April 2010 |

 
   
 
 
CASE OF THE WEEK
 

JUJA ELECTION NULLIFIED FOR SERIOUS IRREGULARITIES
William Kabogo Gitau v. George Thuo & 2 others [2010]eKLR (www.kenyalaw.org)
High Court at Nairobi (Milimani Commercial Court), Justice L. Kimaru
April 16, 2010

Reported by Michael M. Murungi

The High Court has nullified the election of Mr. George Thuo, the Member of Parliament for Juja Constituency in Thika District, after it found that his election in 2007 involved serious irregularities and malpractices committed by the now defunct Electoral Commission of Kenya (ECK).  Mr. Thuo, who had contested the election on a Party of National Unity (PNU) ticket, had reportedly garnered 52,321 votes out of a total of 113,246 valid votes cast. According to the result, his closest rival, Mr. Wiliam Kabogo of the Sisi Kwa Sisi Party, had garnered 32,987 votes.

Mr. Kabogo had filed an election petition against Mr. Thuo, Mr. Watson Mahinda, who was the Returning Officer for the election, and the ECK. The ECK was subsequently  disbanded by a constitutional amendment that established the Interim Independent Electoral Commission (IIEC) as its successor and the IIEC had succeeded to the suit in the place of the ECK. The petition, which involved eighteen witnesses testifying over a period of twenty three days,  was heard and decided by Justice Luka Kimaru. The law requires election petitions to be heard on a priority basis.

While the High Court found that Mr. Kabogo had failed to establish any electoral offence on the part of Mr. Thuo, it found that the evidence disclosed a litany of serious electoral malpractices by the ECK on account of which the results announced for the parliamentary election could not be said to have been valid.

Out of the 231 ballot boxes, 66 of them appeared to have been tampered with. Fifty of them had their seals broken, while others had been broken and had their seals and rivets removed. In the circumstances, the court could not order for a scrutiny and recount of the ballots. The IIEC had been unable to trace and produce the originals of crucial election documents, including the election results from polling stations and the tallied results for all poll centres which by virtue of the National Assembly and Presidential Elections Act and its regulations are required to be recorded in Forms 16A and 17A. Only photocopies of the forms were produced in evidence.

Citing the Universal Declaration of Human Rights, other international treaties, the Constitution of Kenya and the National Assembly and Presidential Elections Act, Justice Kimaru observed that the right of a people to freely elect their representative in a credible, free and fair electoral process was a human right and elections are to be held to internationally acceptable standards. The definitive question, according to him, was whether apart from establishing the particular electoral malpractices alleged against the respondents, the complaints raised by the petitioner impacted on the rights of the voters of Juja constituency to have a person of their choice represent them in the National Assembly.

The High Court first disposed of the allegations of impropriety made against Mr. Thuo. The first complaint was that Mr. Thuo’s election posters did not disclose the name and address of the printers, which was an election offence under the Election Offences Act punishable by imprisonment for up to four years. As the evidence showed, some of the posters used by both Mr. Kabogo and Mr. Thuo did not give the particulars of the publishers. The Court observed that this issue would require an aggrieved party to file a complaint with the police. Merely omitting the information from the poster would not in itself result in the nullification of an election.

The Court found that indeed, Mr. Thuo’s supporters had carried placards containing some adverse material against Mr. Kabogo and that a confrontation had broken out between the two candidate’s supporters which later became the subject of a criminal charge against some of them. However, the Court noted that this was an isolated incident not representative of a generalized state of violence that could have tainted the elections. Moreover, there was no evidence linking Mr. Thuo to the leaflets which in any case had not been so widely circulated as to have impacted on the election. The Court also found no evidence linking Mr. Thuo to the allegations of bribery or unduly influencing the appointment of Presiding Officers with a view to rigging the election.

The petition turned on the evidence against ECK which the Court found had committed grave violations of electoral law. Perhaps the most serious violation was the participation of ECK officers as electoral officials in PNU’s nominations for both parliamentary and civic candidates in Juja constituency. The participation by the ECK in the nominations of a political party that was to later contest the general elections was, as the Court observed, against the principles of independence and impartiality and against the ECK’s own Code of Conduct which prohibited its officials from associating with a political party. ‘It is no wonder’, Justice Kimaru observed, ‘that the people of this nation lost faith with the ECK during the 2007 elections.’ He noted that an electoral body is supposed to conduct elections impartially and that even a seemingly innocent association with any of the contesting parties, particularly the party in power, would raise questions as to its impartiality and neutrality.

The court also found that during the Juja parliamentary election itself, ECK officials had committed serious irregularities. For a number of polling stations, their Forms 16A did not bear the names or the signatures of the Presiding Officers while others did not bear the official seal or stamp of the ECK. The Court noted that a Form 16A which is not signed by a Presiding Officer cannot constitute valid results capable of being accepted for tallying by a Returning Officer. Further, a Form 16A which is not authenticated by the stamp of the electoral body cannot be said to contain valid results. In effect, therefore, the Returning Officer had accepted invalid results and included them in the final results expressed in Form 17A. Still, some of the Forms 17A had not been personally filled by the Returning Officer as he had wrongly delegated the responsibility. Perhaps equally serious was the finding that Forms 16A in respect of some of the polling stations in Juja had been filled by persons who were not in ECK’s official list of designated Presiding Officers.

The Election Regulations required a presiding officer to request each candidate or their agents to sign against the results on Form 16A and where a candidate or agent was absent or failed to sign, the Presiding Officer was to state the absence or the reasons for the lack of the signature. The Court observed that the participation of candidates or agents in an election is not incidental or cosmetic to the election process but an important component of it. In this case, Forms 16A in respect of 37 polling stations which had not been signed by the candidates or their agents did not include the Presiding Officer’s reasons. This, the Court found, was a breach of a mandatory legal requirement and rendered invalid the results contained in the Forms.

The Court also found that there was a wide discrepancy in the total vote tally between the parliamentary, civic and presidential election. A total of 119,110 votes were recorded for the civic election while the parliamentary and presidential votes tallied at 114,808 and 119,050 respectively. The court observed that in normal circumstances, the variation in the tallies of the total votes cast for all the civic, parliamentary and presidential candidates would be marginal. The difference of over 5,000 votes between the parliamentary vote on the one hand and the presidential and the civic vote on the other was therefore evidence of serious electoral malpractice.

Ultimately, the High Court was satisfied that the totality of the electoral irregularities was of such a magnitude that the Juja parliamentary election could not be said to have been free and fair. The Court declared the election null and void, ordered that a certificate of the nullification be issued to the Speaker of the National Assembly and directed the IIEC to proceed to conduct a by-election as required by law. As no election offence was proved against Mr. Thuo and because the electoral malpractices were attributed to the ECK, it was ordered that the IIEC and the Returning Officer would pay the legal costs incurred by both Mr. Thuo  and Mr. Kabogo.

editor@kenyalaw.org

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