After the Election: Tranquillity through the Courts

What next after the Kenyan Presidential Election? This Interview with election law Expert Steve Ogolla was conducted after the election day, but before the declaration of results by the Election Commission IEBC.

RoGGKenya: Is it correct to postpone the election in Nyanza counties indefinitely, as of today, Saturday, Oct 28, 2017? Continue reading “After the Election: Tranquillity through the Courts”

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?

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

What if the IEBC postpones the Election in one Constituency?

Interview with Steve Ogolla, Election Law Expert

RoGGKenya
Last Saturday, a new threat of the opposition to prevent the fresh Presidential election on October 26 has emerged. It is different from the boycott threat that a constituency does not vote at all, with the effect of making it an invalid election that was not conducted in all constituencies, as required by Art. 138(2) of the constitution.
The new threat is to violently prevent the voting procedure itself. According to media reports, the IEBC has replied that they can postpone the elections in a constituency out of security concerns.
So: What if the voting in parts of Kenya has to be postponed and finally does not happen? What are the legal consequences?

Ogolla Actually this would a be a clever way of the IEBC helping UHURU to be declared president due to a “suspended” election.
If the election is suspended in a constituency it means results may be declared based on what has been received in the rest of the country. But IEBC must show that there’s actual violence. The law says this is a violent disruption of the election at polling stations. Not violence in homes, villages, or marketplaces far off from polling stations. The Section of the Elections act requires sound judgment, applied judiciously, not based on personal discretion.

RoGGKenya Meaning in simple words: The IEBC has to go to court to decide it?

Ogolla Not necessarily. IEBC is not allowed to postpone election based on rumors and guesswork or passion and discretion.
There must be evidence publicly available, not secretly known to Intelligence agencies. The clearest evidence is an open attack at polling stations or political leaders publicly declaring that they will not allow IEBC to open polling stations. This kind of threshold is difficult to achieve.

RoGGKenya That is confusing. The constitution prescribes that elections have to be held in each constituency to be valid. And now there can be a case where I looked it up, Section 55B(3) of the Elections Act allows the IEBC to declare a president to be elected even when we have not seen any votes from one specific constituency?

Ogolla Yes, that seems to be a contradiction, and it can be challenged in court. Nobody has so far challenged this section of the Elections Act, so we do not know if it is constitutional. It actually overrides Article 138(2) of the constitution. If NASA was wise they could even now preemptively rush to the High Court to interpret the law and tell us, if Section 55B(3) can be applied in a case of a postponement in one constituency. And the IEBC as an institution could ask the Supreme Court for this clarification.

RoGGKenya And if both don’t do it?

Ogolla Then, after a situation of postponement, the IEBC could act upon Elections Act Sec. 55 B(3) and declare one of the candidates the winner if, as this paragraph says, the commission is “satisfied that the result of the elections will not be affected by voting in the area” – for example, if a constituency has 100,000 registered voters, and the winner leads by 300,000 votes in the rest of the country.

RoGGKenya And that would be the final result of the election?

Ogolla Not necessarily. That could also be challenged in court, with the same arguments. But in this case, the new President would have been declared already. In contrast to a case of a successful boycott. If there is not a single vote in one of the constituencies on election day, the IEBC chairman is not allowed to declare any winner.
But now that IEBC has disclosed the possibility of stopping the election in a constituency due to violence, then NASA might ensure people don’t vote in a certain constituency even without violence.

………………………………..

Direct links to the legal sources mentioned:
Sec 55B Elections Act
Art. 138 (2) of the Constitution

How to report on the Fresh Elections – Discussion in Nakuru

On Saturday, October 14, Journalists in Nakuru are cordially invited to discuss with top legal expert Steve Ogolla the consequences of the legal developments around the fresh elections for our reporting in the media. The discussion will take place from 9 a.m. to 2 p.m. at Hotel Cathay, Tom Mboya Street. The place is restricted. Please register here.

ELOG confirms IEBC Presidential Tallying Results

The Elections Observations Group (ELOG) has released the results of its Parallel Vote Tabulation of the Kenyan Presidential Elections. They match with the official results of the Independent Electoral and Boundaries Commission (IEBC). It is now up to the opposition to specify why they think the election was manipulated. Not in the database, but through the filled-out forms 34A, B, C that were also used for the ELOG study through their observers who were present at the polling stations.

As we have written in our guide “How to check on Rigging Claims“, Parallel Vote Tallying (PVT) is based on a large sample of polling stations from all over the country that is representative enough to forecast the result from the tallying of the total number of polling stations. We have only seen publication through social media but this is what we found on the ELOG website, and we uploaded the pdf file with the ELOG information here: ELOG-PVT_Verification-statement

How to check on Rigging Claims …

… after the closure of the polling stations. Part 3 of our Step-By-Step-Guide for the Media’s Election Reporting

Criminals may run away and not be caught in the act. But after their crime they leave traces that can be investigated. A post-mortem analysis of facts can help to confirm or counter claims that the elections were rigged. We have compiled some traces that may be discovered. Continue reading “How to check on Rigging Claims …”

Just Days before the Polls IEBC starts reading its own Regulations

Up until August 3, just five days before the elections, it seemed to be common knowledge “in the public domain”, that unstamped ballot papers are invalid. This is not true. Regulation 77 does not list a missing stamp on a ballot to be one of the reasons for the rejection of a ballot. IEBC’s Ezra Chiloba noticed this and wrote to his staff advising both the presiding and returning officers that “they may not reject a ballot paper for the reason that it is not stamped.” Continue reading “Just Days before the Polls IEBC starts reading its own Regulations”

The Candidates at your Fingertips

For your reporting needs, we have compiled the complete lists of the candidates vying for various electoral positions in the Kenyan August 8th elections. This list is a handy tool both on the road and in your newsroom. You may download the complete list as Excel-File. Or you access the lists for the different electoral positions in easily readable tables on your smartphone. Explore it here, we doubt you will get anywhere else with a faster or better overview.

The Track Record of Kenyan MCAs

Some sections of the media tend to judge the performance of a Member of the County Assembly (MCA) exclusively from what he or she has done for the ward the MCA was elected in. In consequence, an MCA tends to campaign for re-election on this basis only: Show off in the ward, point to projects that were put in place there – and make sure that a lot of work is done in the last year of his term. And make the ward development fund‘s achievements shine bright and shed a favorable light on the MCA.

But this is just ONE task of the MCAs. Continue reading “The Track Record of Kenyan MCAs”

The Track Record of Kenyan MCAs

Some sections of the media tend to judge the performance of a Member of the County Assembly (MCA) exclusively from what he or she has done for the ward the MCA was elected in. In consequence, an MCA tends to campaign for re-election on this basis only: Show off in the ward, point to projects that were put in place there – and make sure that a lot of work is done in the last year of his term. And make the ward development fund‘s achievements shine bright and shed a favorable light on the MCA.

But this is just ONE task of the MCAs. Continue reading “The Track Record of Kenyan MCAs”

The Track Record of Kenyan MCAs

Some sections of the media tend to judge the performance of a Member of the County Assembly (MCA) exclusively from what he or she has done for the ward the MCA was elected in. In consequence, an MCA tends to campaign for re-election on this basis only: Show off in the ward, point to projects that were put in place there – and make sure that a lot of work is done in the last year of his term. And make the ward development fund‘s achievements shine bright and shed a favorable light on the MCA.

But this is just ONE task of the MCAs. Continue reading “The Track Record of Kenyan MCAs”

The Track Record of Kenyan MCAs

Some sections of the media tend to judge the performance of a Member of the County Assembly (MCA) exclusively from what he or she has done for the ward the MCA was elected in. In consequence, an MCA tends to campaign for re-election on this basis only: Show off in the ward, point to projects that were put in place there – and make sure that a lot of work is done in the last year of his term. And make the ward development fund‘s achievements shine bright and shed a favorable light on the MCA.

But this is just ONE task of the MCAs. Continue reading “The Track Record of Kenyan MCAs”

The Track Record of Kenyan MCAs

Some sections of the media tend to judge the performance of a Member of the County Assembly (MCA) exclusively from what he or she has done for the ward the MCA was elected in. In consequence, an MCA tends to campaign for re-election on this basis only: Show off in the ward, point to projects that were put in place there – and make sure that a lot of work is done in the last year of his term. And make the ward development fund‘s achievements shine bright and shed a favorable light on the MCA.

But this is just ONE task of the MCAs. Continue reading “The Track Record of Kenyan MCAs”

The Track Record of Kenyan MCAs

Some sections of the media tend to judge the performance of a Member of the County Assembly (MCA) exclusively from what he or she has done for the ward the MCA was elected in. In consequence, an MCA tends to campaign for re-election on this basis only: Show off in the ward, point to projects that were put in place there – and make sure that a lot of work is done in the last year of his term. And make the ward development fund‘s achievements shine bright and shed a favorable light on the MCA.

But this is just ONE task of the MCAs. Continue reading “The Track Record of Kenyan MCAs”

The Track Record of Kenyan MCAs

Some sections of the media tend to judge the performance of a Member of the County Assembly (MCA) exclusively from what he or she has done for the ward the MCA was elected in. In consequence, an MCA tends to campaign for re-election on this basis only: Show off in the ward, point to projects that were put in place there – and make sure that a lot of work is done in the last year of his term. And make the ward development fund‘s achievements shine bright and shed a favorable light on the MCA.

But this is just ONE task of the MCAs. Continue reading “The Track Record of Kenyan MCAs”

The Track Record of Kenyan MCAs

Some sections of the media tend to judge the performance of a Member of the County Assembly (MCA) exclusively from what he or she has done for the ward the MCA was elected in. In consequence, an MCA tends to campaign for re-election on this basis only: Show off in the ward, point to projects that were put in place there – and make sure that a lot of work is done in the last year of his term. And make the ward development fund‘s achievements shine bright and shed a favorable light on the MCA.

But this is just ONE task of the MCAs. Continue reading “The Track Record of Kenyan MCAs”

The Track Record of Kenyan MCAs

Some sections of the media tend to judge the performance of a Member of the County Assembly (MCA) exclusively from what he or she has done for the ward the MCA was elected in. In consequence, an MCA tends to campaign for re-election on this basis only: Show off in the ward, point to projects that were put in place there – and make sure that a lot of work is done in the last year of his term. And make the ward development fund‘s achievements shine bright and shed a favorable light on the MCA.

But this is just ONE task of the MCAs. Continue reading “The Track Record of Kenyan MCAs”

The Track Record of Kenyan MCAs

Some sections of the media tend to judge the performance of a Member of the County Assembly (MCA) exclusively from what he or she has done for the ward the MCA was elected in. In consequence, an MCA tends to campaign for re-election on this basis only: Show off in the ward, point to projects that were put in place there – and make sure that a lot of work is done in the last year of his term. And make the ward development fund‘s achievements shine bright and shed a favorable light on the MCA.

But this is just ONE task of the MCAs. Continue reading “The Track Record of Kenyan MCAs”