Supreme Court of Kenya to postpone the Election? – a legal assessment by Steve Ogolla

A group of civil society organizations has filed a case in the Supreme Court on Tuesday, Oct. 24, 2017, seeking an interpretation whether the Kenyan Presidential election of Oct. 26 can be postponed or not. The interview below was conducted on the same day and reflects what the effect of the petition could have been. But the Supreme Court did not meet the minimum quorum of judges to conduct a hearing on the eve of election day. Some arguments of the petition, however, could apply to post-election petitions as well. A link to the petition text is under the interview text.

Question (RoGGKenya): There are already several other petitions seeking a postponement of the Presidential election that is scheduled for Thursday 6 a.m., which is in less then two days from now. What is new to this one?

Answer (Steve Ogolla): There is no assurance that the other petitions who are at the High Court will be decided in time. Nobody has gone to the Supreme court so far. All other cases have been filed at the High Court. This is the first case at the Supreme Court seeking an interpretation. If the court decides to hear it, then it means the other cases at the High Court have to stop.

Q: What are the new aspects of this petition?

A: I have not yet been able to fully read the petition. From what I know the central argument in that petition is that the election should be postponed. The other petitions make some other difficult prayers that the High Court must determine. For instance, there is a petition, which seeks to establish a caretaker government. When you mix this question with the election question the case becomes to extensive and the court may require more time to determine the whole petition.

Q: Until after the election date?

A: The law does not allow the High Court to decide on one of the questions separately before the others. It is possible that the CSOs have isolated just one question, the question of  the Presidential election. That is the only question that can be filed at the Supreme Court.

Q: And what are the new legal arguments of today’s petition?

A: The new argument is, firstly, that IEBC has said they cannot assure a free and fair election and that this casts serious doubts on the credibility of an October 26 election. And secondly, that the reforms that had to be done by the IEBC were not undertaken comprehensively. And that therefore there is no justification for requiring a new election on the 26th.

Q: The constitution is clear: The fresh elections have to be conducted within 60 days after a declaration the first try was void. So, what could be a constitutional reason for the Supreme Court to postpone it against the explicit requirement in Art. 140?

A: The reason could be this: The constitution must be read as whole. And the purpose of an election is to determine who is the president in a process that is democratic, free, fair and verifiable. Now, if it becomes difficult, for example if there is emergency or inadequate preparation on the part of the IEBC, then it is open to the judiciary to interpret the constitution in a manner that allows for extension. No provision of the constitution is rigid. The constitution must be considered as a living document, able to adapt itself to unforeseen situations and scenarios that may occur. So, the 60-day-notice for a fresh election, although fixed in law, is not rigid. If there is a good constitutional reason for it, the court may adjust it.

Q: Wouldn’t have been logical that IEBC chairman Chebukati himself asks the Supreme Court for postponement?

A: Yes

Q: Why didn’t he do it?

A: I am unable to answer this with certainty, why he has not done it despite having admitted that he cannot guarantee a free fair and credible election on the 26th. Now he has talked to Uhuru Kenyatta and Raila Odinga, he may believe that political interference has now stopped. But I can hardly imagine that a short conversation with both of them could lead to this conclusion that all problems of political interference have disappeared.  The other explanation could be that Chebukati prefers to have an election first and that the problems are handled later in an election petition. I think the second explanation is more plausible.

Q: What is the timeline now for the Supreme Court hearings in this new case?

A: If the petition is filed before 10 a.m., the first hearing will be today in the afternoon.  That will be an “ex parte” hearing, meaning they will be hearing the petitioners only. Chebukati must be one of the respondents. He will be as the other parties be invited for a second hearing later. “This is called the inter partes hearing.” Possibly tomorrow morning at 9 a.m. or even today later in the evening. Both hearings have to be held before the Supreme Court can give an order stopping the election or not.

Q: And the decision?

A: The ruling of the Supreme Court has to be given latest tomorrow, Wednesday, 25th. Because any decision that is delayed beyond Wednesday will not have any consequences, because the election will be ongoing. They must hear the parties latest in the morning, then go back, reflect, come back in the afternoon, to read their ruling as to if the election is stopped or can continue.

Q: Why did NASA not go to the Supreme Court? They are putting forward the same argument as this petition. Why have they not done it?

A: It could be that they are working through proxy, which is these NGOs that have gone to court.

Q: Are these organizations in danger now, because they are seen to be on NASA, the opposition, side?

A: There already challenges and crackdowns. One of the NGOS, the Kenya Human Rights Commission has been threatened with closure, one of the reasons being because it seemed to align itself more with the political opposition. The other organisation, AfriCOG, was arbitrarily closed, partly because the government thinks it is closely associated with the opposition. So, yes, they may be some risk. But it seems the NGOs don’t really care about that. Because otherwise they would not have filed the case.

…………………….

Steve Ogolla is advocate and independent election law expert in Nairobi

PDF file with the petition

NGO-Supreme-Court-Petition_Oct24