Important lessons on why elections are being nullified
It is why the elections will be declared null and void
Kenya was the fourth country in the world after Ukraine, Maldives and Austria to nullify a presidential election. It is also the first country in Africa to nullify a presidential election.
Raila Odinga had through his lawyers successfully convinced the six judge bench that the August 8th presidential elections were not conducted in a free and fair manner. This led to a repeat election on October 26th in which Uhuru Kenyatta won with a landslide victory.
As a result of the new Constitution Section 87 allows aggrieved parties to go and seek redress in court. So far only four elections have been nullified.
Homa Bay Governor Cyprian Awiti becomes the second governor after Wajir’s Ahmed Mohammed Abdi Mohammed to lose his seat after a successful petition by his opponent.
Former Kasipul MP and Awiti’s main rival Oyugi Magwanga managed to convince the court that the election was a flawed process.
In addition Judge Joseph Karanja ordered that Magwanga be paid 6 million by Independent Electoral and Boundaries Commission and Cyprian. 4 million and 2 million respectively.
Taking on a different tangent, these are the common issues that led to nullification of elections:
1. Flawed certificates
One of the reasons why Awiti’s election was nullified was because of Form 37As that lacked security features.
Though IEBC argues that the security features are not mandatory, the court has pronounced itself time and again on the matter. It all began with the nullification of the August 8 elections last year.
The four judges cited lack of watermarks and authentic serial numbers. This has been one of the causes of nullification of various elections.
In these cases, certificates that had incoherent numbers plus haphazard filling gave the petitioners' lawyers a very easy time convincing the judges.
For instance, form 34C did not have security features required as the National Returning Officer Wafula Chebukati handed over President Uhuru Kenyatta of Jubilee Party on August 11, 2017.
2. Flawed process
One of the common reasons that has led to nullification of elections has been illegalities and irregularities.
The Supreme Court found that the process was marred by systematic and institutional failures. The process was characterized by massive deliberate mistakes such as lack of proper verification of votes. Homa Bay governor lost the case on similar grounds.
The Judiciary has since been emphasizing on a process that conforms to the constitution and the electoral laws.
In simple terms, the numbers have to add up in a clear and verifiable manner.
While reading the judgement that nullified the August 8 election Justice Isaac Lenaola said that, "On our part, elections is not just an event but a whole process, this is also described in IEBCs handbook."
In the second Presidential petition Khelef Khalifa and Njonjo Mue v IEBC, Wafula Chebukati and Uhuru Kenyatta, the Supreme Court noted that IEBC followed due procedure despite the challenges faced. Therefore Uhuru Kenyatta’s second win was upheld.
Lamu West MP Stanley Muthama is the latest successful candidate whose election was nullified. Justice Weldon Korir on Wednesday ruled that the process was not conducted according to the law.
What does the Law say?
The Constitution of Kenya in Section 81(e)(iv&v) declares that "The electoral system shall comply with the principle of free and fair elections which are transparent and administered in an impartial, neutral, efficient, accurate and accountable manner."
High Court Nullifies Cyprain Awiti's Win
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