CJ David Maraga speaks on Judiciary preparedness for election dispute resolution ahead of August 8 poll

STATEMENT BY HON. DAVID K. MARAGA, EGH, CHIEF JUSTICE OF THE REPUBLIC OF KENYA AND PRESIDENT OF THE SUPREME COURT, ON THE JUDICIARY’S PREPAREDNESS FOR ELECTIONS DISPUTE RESOLUTION.  AUGUST 3, 2017

 

Justice Ojwang, Supreme Court Judge

President, Court of Appeal, Justice Kariuki

Principal Judge Justice Mwongo

Chairman, Judiciary Committee on Elections, Justice Mbogholi-Msagha,

 

Chief Registrar of the Judiciary Anne Amadi,

President of the Law Society of Kenya, Mr Isaac Okero,

Representative of the AG - Muthoni Kimani

IDLO representatives and other development partners,

 

Ladies and Gentlemen of the media,

 

Good morning!

Right from Independence, Kenya has been a democratic state governed by the rule of law. On August 27, 2010, the Kenyan people gave themselves a new Constitution derived from public participation and approved through popular vote. That Constitution makes extensive provisions on matters Kenyans hold dear such as national values, devolution, good governance and an elaborate Bill of Rights.

 

On good governance, the Kenyan Constitution provides when and how to conduct elections.  Elections, as we know, provide citizens with an opportunity every five years to determine the people they want to lead them. In the event of electoral disputes, the Constitution authorizes the Judiciary to resolve them and sets out the timelines within which they should be determined as well as the rules and procedures to be followed in such exercises.

 

To deliver on its mandate, the Judiciary has a standing committee, the Judiciary Committee on Elections (the Committee) which spearheads administrative arrangements and capacity building measures for Judges and Judicial Officers and generally prepares the Judiciary to efficiently and expeditiously determine electoral disputes that arise from general elections in our country.  The efforts of that Committee enabled the Judiciary to determine, within the set timelines, the 188 election petitions that arose from the 2013 General Election.

 

Next week - on August 8 - Kenya will hold the second General Election under the new Constitution. Under the aegis of the Committee, the Judiciary has put in place preparatory arrangements for the resolution of the electoral disputes bound to arise from these elections. The Committee has carried out a wide range of activities in preparation for the elections, the key ones being the following:

 

One, intensive refresher training for the Judges and Magistrates who will handle electoral disputes. This was necessitated by the changes made in Election Laws since 2013, and the gaps that were noted during the 2013 petitions and a review of the electoral dispute resolution jurisprudence arising from the 2013 petitions. Virtually all judicial officers of the rank of Senior Resident Magistrate and above, including the High Court, Court of Appeal and Supreme Court judges, have been trained.

 

Two, the Committee has been at the forefront of reforming the Election Disputes Resolution - EDR laws and has consistently engaged the National Assembly on this. Some of our proposals were adopted, such as the amendment to Section 76 of the Elections Act to require that the filing of a petition be done within 28 days from the declaration of an election result, rather than from date of publication in the Gazette were adopted.

 

Other proposals, such as the extension of timelines for hearing and determination of the Presidential Petition, were rejected. This means we are still bound by the Constitutional requirement that the Presidential petition be heard and determined within 14 days of filing. This has required us to put in place a number of administrative and procedural arrangements that will make this possible. Some of the journalists here may already have participated in planning meetings aimed at ensuring that, should there be a Presidential petition, the media are well facilitated to access the Supreme Court and communicate the proceedings to the public.

Three, the election rules of procedure for the different courts have been revised and gazetted, and subsequently compiled into what is referred to as The Grey Book. This is a compendium of all the rules and laws relating to the elections. Indeed it is one of the EDR tools we are launching this morning.

 The Elections (Parliamentary and County Elections) Petition Rules, 2017 were gazetted in June this year, while the Supreme Court (Presidential Election Petition) Rules and the Court of Appeal (Election Petition) Rules, 2017 which were gazetted last week. The Court of Appeal (Election Petition) Rules have been developed for the first time while the other two rules are updated from the 2013 Rules.

 

Four,we are assembled here this morning to launch the Bench Book on Electoral Disputes Resolution which the Committee has prepared to build on the work already undertaken. This is a quick reference guide to be used by judges and magistrates as they handle the petitions. The Bench Book, which is the first one in Kenya’s history, contains summary procedures in EDR, highlights key legal provisions from the Constitution, the legislation and regulations governing EDR and the relevant jurisprudence in thematic areas. It also provides a quick reference of key resources and authorities.

 

I am happy to launch this important book today, which has been produced through the painstaking efforts of the Technical Committee on EDR led by the chairperson, Justice Stella Mutuku.

 

We are aware that public confidence in the Judiciary as a neutral and credible arbiter of electoral disputes rests on how fairly and efficiently we resolve these disputes.

Following the promulgation of the new Constitution in 2010, the Judiciary has been undergoing a process of transformation to strengthen its role as one of the three arms of the government exercising delegated authority from the people of Kenya. We have embraced this honour with a steadfast commitment to ensuring that the administration of justice is efficient and independent and that our services are accessible to all Kenyans. This is at the heart of the transformation of the Judiciary which we have been carrying out steadfastly in the last six years.

Kenyans, you have seen how we have in the last two to three months, impartially and efficiently handled electoral related disputes.

Both orders of the political divide have won and lost cases they or their surrogate have brought to us. 

This is a clear demonstration of our preparedness.

 

Once again, I want to assure the country that the Judiciary is ready and able to resolve all electoral disputes which may arise from the General Election. I will, if necessary, allow our judicial officers to work outside the official hours – into the night and through weekends – to ensure that we keep to the Constitutional timelines without compromising on the quality of rulings.

 

We must never forget the crisis that gripped Kenya in the aftermath of the 2007 General Election. Those horrid events will always be a reminder that when electoral disputes are left in the hands of non-judicial processes, Kenyans pay an enormous price.

 I therefore urge those dissatisfied with results of elections at any level to file their petitions in court.

Thank you. 

 

 

HON.JUSTICE DAVID K. MARAGA, EGH,

CHIEF JUSTICE AND PRESIDENT

OF THE SUPREME COURT.

 

 Bench Book on Electoral Disputes Resolution [  Download EDR Bench Book ]