ELECTION WATCH 19/2017
[13th November 2017]
The Kenya Election: Constitutional Case Nullifying Presidential Election:
Lessons for Zimbabwe
In late September the Supreme Court of Kenya set aside a presidential election which that country’s Electoral Commission had declared won by the incumbent President. The political effects of the case [Odinga & Another v Independent Electoral and Boundaries Commission & Others] are still unfolding in Kenya but its legal effects will be felt throughout Africa, because the court ruled that elections had to be conducted in accordance with constitutional and legal principles. That may seem trite and obvious but in many African countries little more than lip service is paid to electoral principles of fairness and transparency, even when they are enshrined in a country’s constitution.
This Election Watch will look at the Kenyan judgment to see what lessons we in this country should draw from it. The full judgment is available on the Veritas website [link]
Similarities Between Zimbabwean and Kenyan Electoral Law
The first point to note is that our law on elections is similar to Kenyan law, and the constitutional provisions on which the Kenyan Supreme Court relied are the same or similar to those in our Constitution. This is not surprising, because the compilers of our Constitution drew ideas from the Kenyan Constitution amongst others, and the Kenyan and Zimbabwean presidential and parliamentary systems are similar.
The Kenyan Supreme Court relied in particular on the following constitutional and statutory provisions, which have counterparts in our law:
· Article 38 of the Kenyan Constitution gives every citizen the right to free, fair and regular elections based on universal suffrage.
üSections 67(1)(a) and 155(1)(c) of our Constitution give Zimbabwean citizens the same rights.
· Article 86(a) of the Kenyan Constitution states that whatever voting method is used it must be simple, accurate, verifiable, secure, accountable and transparent.
üSection 156(a) of the Zimbabwe Constitution is identical, except that it omits the word “accountable”.
· Section 83 of the Kenyan Elections Act sets out the circumstances under which a court will set aside an election. This section will be explained later
üThe equivalent provision in the Zimbabwe Electoral Act (section 177) is very similar in effect
Background to the Kenyan Judgment
In August this year Kenya held a presidential election using an integrated computerised system which combined biometric voter registration, voter identification on polling day and transmission of results from polling stations to tallying centres. The incumbent president, Mr Uhuru Kenyatta, was declared the winner with 8 203 290 votes over his nearest rival, Mr Raila Odinga, with 6 762 224 votes – a substantial margin.
Mr Odinga challenged the result in the Supreme Court of Kenya on two main grounds:
· The conduct of the election violated the constitutional principles of a free and fair election set out in articles 38 and 86 of the Kenyan Constitution [the articles are outlined above]. This in itself rendered the election void.
· In addition the Independent Electoral and Boundaries Commission [the Kenyan equivalent of ZEC] committed errors in the counting and tabulation of results, particularly by rejecting an unprecedented number of votes; these irregularities significantly affected the election result.
What the Kenyan Court Decided
It was a long judgment – 178 pages – and carefully reasoned, but the essence of the court’s decision was as follows:
1. The effect of section 83 of the Kenyan Elections Act [mentioned above], when interpreted in its constitutional and historical context, is that petitioners who prove irregularities in the conduct of an election can have it set aside on one or other of two grounds:
a. that the conduct of the election substantially violated the principles laid down in the Constitution and any other written law on elections; or
b. that the irregularities affected the result of the election, even though the election may have been conducted substantially in accordance with constitutional principles.
In other words, if an election is not conducted substantially in accordance with constitutional and electoral principles it must be set aside on that ground alone, regardless of whether the irregularities affected the result. An election which disregards constitutional principles cannot be regarded as an election for the purposes of the Constitution, whatever its result.
[Note: Section 177 of our Electoral Act, which is similar in effect to section 83 of the Kenyan Act, should be interpreted in the same way, because the Constitution is the supreme law and cannot be disregarded]
2. The principles cutting across all the Articles of the Kenyan Constitution include integrity, transparency, accuracy, accountability, impartiality, simplicity, verifiability, security and efficiency as well as those of a free and fair election conducted by secret ballot and free from violence, intimidation, improper influence or corruption.
[Note: All these principles are set out in the Zimbabwe Constitution and in section 3 of the Electoral Act]
3. In deciding whether or not an election was conducted in accordance with constitutional principles, the whole electoral process must be considered, from the delimitation of electoral boundaries and the registration of voters to the counting of votes and the transmission of results to counting centres. It is of particular importance that the results should be transmitted accurately and transparently.
4. The Kenyan constitution placed on the Election Commission the responsibility for ensuring that election systems were transparent; this obliged the Commission to develop systems that voters could understand, and also obliged it to give candidates and voters access to information that would enable them to cross-check electoral results.
5. The Kenyan presidential election violated those principles, in that:
a. Election results could not be transmitted electronically from 11 000 polling stations, as required by law, because the stations were not accessible to the wireless network.
b. When the Election Commission declared the results of the election it had not received authentic tally forms from over 5 000 polling stations representing up to 3,5 million votes, so it could not have verified the results as required by law.
c. The Commission had not obeyed a court order allowing the petitioners to inspect its servers; this gave some substance to allegations that its servers had been “hacked” or illegally manipulated, and that it had not received tally forms it claimed to have received.
d. The Commission could not account for the fact that nearly 400 000 more votes were recorded for the presidential election than were cast in the concurrent parliamentary and local authority elections.
6. As a result the electoral process, from the time that voters cast their votes on polling day, was not transparent or verifiable and therefore was not in accordance with the Constitution.
Lessons for Zimbabwe
There are some important lessons for Zimbabwe from the Kenyan decision:
1. The electoral principles set out in sections 155 and 156 of the Constitution are not just pious aspirations: they must be obeyed because the Constitution is the supreme law. These principles entail that elections must: be peaceful, free and fair, conducted by secret ballot, and based on universal and equal adult suffrage; the voting method must be simple, accurate, verifiable, secure and transparent; and appropriate systems must be in place to eliminate violence and malpractices.
2. The principles of democratic elections set out in section 3 of the Electoral Act must also be obeyed by ZEC and by everyone else concerned with elections. These principles reiterate the constitutional ones mentioned above, and add that every citizen is entitled to cast a vote freely and to participate in peaceful political activity, and that every political party has the right to all material and information necessary for it to participate effectively in elections.
3. These principles apply to every stage of an election, because all stages are important. It is not enough for voting procedures to be fair if, for example, voter registration has not been conducted properly or the counting of votes is shrouded in secrecy.
4. If an election is conducted in substantial disregard of these principles it must be set aside regardless of the result, because it is not an election for the purpose of the Constitution.
5. Transparency is vitally important to the electoral process. ZEC must not only conduct elections fairly, but it must be clear that every stage of the process has been conducted fairly.
6. Transparency extends to every stage in the electoral process. Each stage, from delimitation and voter registration to the counting and verifying of results, must be open to scrutiny by political parties, candidates and the public.
7. It is not enough for elections to be conducted according to the Electoral Act if it does not comply with the Constitution – and our Electoral Act does not comply with our Constitution. [See Election Watch 15/2017 of 25th September.] The Electoral Act must be aligned to the Constitution without delay if this country is to avoid electoral challenges on the same grounds as the successful Kenyan challenge.