What the Kenyan Court Decided
It was a long judgment – 178 pages – and carefully reasoned, but the essence of the court’s decision was as follows:
- The effect of section 83 of the Kenyan Elections Act [mentioned above], when interpreted in its constitutional and historical context, is that petitioners who prove irregularities in the conduct of an election can have it set aside on one or other of two grounds:
- that the conduct of the election substantially violated the principles laid down in the Constitution and any other written law on elections; or
- that the irregularities affected the result of the election, even though the election may have been conducted substantially in accordance with constitutional principles.
In other words, if an election is not conducted substantially in accordance with constitutional and electoral principles it must be set aside on that ground alone, regardless of whether the irregularities affected the result. An election which disregards constitutional principles cannot be regarded as an election for the purposes of the Constitution, whatever its result.[Note: Section 177 of our Electoral Act, which is similar in effect to section 83 of the Kenyan Act, should be interpreted in the same way, because the Constitution is the supreme law and cannot be disregarded]
- The principles cutting across all the Articles of the Kenyan Constitution include integrity, transparency, accuracy, accountability, impartiality, simplicity, verifiability, security and efficiency as well as those of a free and fair election conducted by secret ballot and free from violence, intimidation, improper influence or corruption.
- In deciding whether or not an election was conducted in accordance with constitutional principles, the whole electoral process must be considered, from the delimitation of electoral boundaries and the registration of voters to the counting of votes and the transmission of results to counting centres. It is of particular importance that the results should be transmitted accurately and transparently.
- The Kenyan constitution placed on the Election Commission the responsibility for ensuring that election systems were transparent; this obliged the Commission to develop systems that voters could understand, and also obliged it to give candidates and voters access to information that would enable them to cross-check electoral results.
- The Kenyan presidential election violated those principles, in that:
- Election results could not be transmitted electronically from 11 000 polling stations, as required by law, because the stations were not accessible to the wireless network.
- When the Election Commission declared the results of the election it had not received authentic tally forms from over 5 000 polling stations representing up to 3,5 million votes, so it could not have verified the results as required by law.
- The Commission had not obeyed a court order allowing the petitioners to inspect its servers; this gave some substance to allegations that its servers had been “hacked” or illegally manipulated, and that it had not received tally forms it claimed to have received.
- The Commission could not account for the fact that nearly 400 000 more votes were recorded for the presidential election than were cast in the concurrent parliamentary and local authority elections.
- As a result the electoral process, from the time that voters cast their votes on polling day, was not transparent or verifiable and therefore was not in accordance with the Constitution.
Lessons for Zimbabwe
There are some important lessons for Zimbabwe from the Kenyan decision:
- The electoral principles set out in sections 155 and 156 of the Constitution are not just pious aspirations: they must be obeyed because the Constitution is the supreme law. These principles entail that elections must: be peaceful, free and fair, conducted by secret ballot, and based on universal and equal adult suffrage; the voting method must be simple, accurate, verifiable, secure and transparent; and appropriate systems must be in place to eliminate violence and malpractices.
- The principles of democratic elections set out in section 3 of the Electoral Act must also be obeyed by ZEC and by everyone else concerned with elections. These principles reiterate the constitutional ones mentioned above, and add that every citizen is entitled to cast a vote freely and to participate in peaceful political activity, and that every political party has the right to all material and information necessary for it to participate effectively in elections.
- These principles apply to every stage of an election, because all stages are important. It is not enough for voting procedures to be fair if, for example, voter registration has not been conducted properly or the counting of votes is shrouded in secrecy.
- If an election is conducted in substantial disregard of these principles it must be set aside regardless of the result, because it is not an election for the purpose of the Constitution.
- Transparency is vitally important to the electoral process. ZEC must not only conduct elections fairly, but it must be clear that every stage of the process has been conducted fairly.
- Transparency extends to every stage in the electoral process. Each stage, from delimitation and voter registration to the counting and verifying of results, must be open to scrutiny by political parties, candidates and the public.
- It is not enough for elections to be conducted according to the Electoral Act if it does not comply with the Constitution – and our Electoral Act does not comply with our Constitution. [See Election Watch 15/2017 of 25th September.] The Electoral Act must be aligned to the Constitution without delay if this country is to avoid electoral challenges on the same grounds as the successful Kenyan challenge.