Transparency, verifiability and accountability in elections

The Court of appeal of Kenya today nullified the election of Governor Alfred Mutua. The appeal was prompted by Ms. Wavinya Ndeti, (the appellant) who disatisfied with the decision of the High Court appealed against the Independent Electoral and Boundaries Commission (the 1st respondent), the County returning Officer (the 2nd respondent and Governor Alfred Muua (3rd respondent) and In making the decision the court dealt with the following broad issues, i.e. firstly, whether the appeal was properly before the court in light of Section 85A of the Elections Act that limits the court's mandate to matters of law and secondly, whether the election court erred in holding that the election of governor of Machakos County held on 8th August 2017 was conducted in accordance with Articles 81 and 86 of the Constitution. Within that, the court addressed the questions: whether public workers were engaged by IEBC in the conduct of the election and if so, whether the election was conducted by an independent body and administered in an impartial, neutral, and accountable manner and was free and fair; whether the results declared by the county returning officer were verifiable; and whether the election court erred in rejecting the appellant's claim that public officers acted as agents of the 3rd respondent or his sponsoring political party in breach of Section 15 of the Election Offences Act.

On the first issue, i.e. whether the appeal was properly before the court, in light of section 85A of the elections Act, the court in summary held that a question of law is one where the interpretation or construction of the Constitution, statute or regulations made thereunder or their application to the sets of facts established by the trial Court or the conclusion arrived at by the trial judge after establishing the facts are in issue and based on this the court decided that it had jurisdiction to hear the case. On the second issue the court was of the view that merely engaging public servants, does not of itself bar the election from being conducted in an independent an impartial manner. On the third issue the court found that the results declared were not verifiable.

The court took the view on this point that the county returning officer was under a duty to have regard to the primary document in her verification role and that it was inconceivable to declare results in Form 37C without linking those results to the source, Forms 37A. Finally on the fourth issue, the court found that it had been proved that a public officer acted as an agent of the 3rd respondent, but fell short of finding that the 3rd respondent had any knowledge that the agent had been engaged on his behalf and in so doing gave the 3rd respondent a chance to vie for the re-election. On these broad grounds the election was nullified and a fresh election ordered. The courts ruling makes it clear that elections have an expectation of transparency, accountability, simplicity, security, accuracy, efficiency and especially, verifiability and it is incumbent for both the candidates and the Independent Electoral and Boundaries Commission to ensure that the elections are carried out in accordance with the Constitution and the law.

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