Presidential election petitioners face a demanding task in court, with Supreme Court Judge William Ouko saying claims of irregularities must be backed by convincing evidence showing that the violations either affected the outcome or seriously damaged the credibility of the entire election.
Justice Ouko said simply pointing to breaches of electoral law is not enough to persuade the court to overturn a presidential result. Petitioners must demonstrate that the problems were so widespread and serious that, when considered together, they undermined the integrity of the election.
"The onus is on the petitioner to prove that the election was so badly conducted and marred with irregularities and illegalities that it does not matter who was declared the winner. In other words, the election was marred by many irregularities the cumulative effect of which fundamentally and negatively impacted the integrity of the election," he said at the Catholic University of Eastern Africa on Tuesday during a public lecture.
The judge stressed that courts are required to examine the impact of alleged violations rather than automatically treating every breach as grounds for cancelling an election.
"It is not every infraction of the law that will lead to nullification of an election," he added.
Justice Ouko also looked back at the handling of presidential election disputes before the 2010 Constitution, using the 1997 case involving Mwai Kibaki's challenge against President Daniel arap Moi as an example.
Kibaki's petition was dismissed for want of personal service. According to Justice Ouko, the case showed how the legal system at the time lacked an effective way of providing a substantive determination of disputes concerning the presidential mandate.
The limitations of that system became more apparent following the disputed 2007 presidential election and the violence that came after it.
The Kriegler Commission later raised concerns about confidence in electoral and judicial institutions, highlighting the wider consequences of unresolved disputes over election results.
Justice Ouko said the 2007 crisis demonstrated how disagreements that are not settled through constitutional institutions can spill into the political arena.
The 2010 Constitution introduced a different framework by giving the Supreme Court exclusive original jurisdiction to hear and determine presidential election petitions. Justice Ouko said the arrangement was intentionally created to ensure that disputes concerning the country's highest office have an authoritative and final legal process.
Presidential election petitions must be lodged within seven days after the declaration of results. The Supreme Court is then required to reach a decision within 14 days.
Where the court invalidates an election, the law provides for a fresh poll to be held within 60 days.
Justice Ouko, however, cautioned that the tight deadlines should not come at the expense of a fair process.
"Expedition, however, must not be conflated with haste," Justice Ouko said, explaining that the need to settle disputes within the prescribed period must be balanced with fair hearing and due process.
He said the petitioner carries the legal burden of proving the case from the beginning to the end. However, the evidential burden can move to the other side once a petitioner places enough material before the court to require an answer from the opposing party.
The judge also explained that presidential election cases do not always follow the same proof standards used in ordinary civil disputes.
Claims involving criminal or quasi-criminal conduct require proof beyond reasonable doubt, he said. For other allegations, the required standard is above a balance of probabilities but below the criminal standard.
Justice Ouko acknowledged that the approach has continued to attract debate. He questioned whether demanding criminal-level proof in election proceedings could create challenges where the same conduct may later be taken before a criminal court.
He also stressed that election courts should not become venues for criminal trials or make determinations of criminal guilt.
Beyond proving that irregularities occurred, petitioners must also show their effect on the election, Justice Ouko said.
He warned that making numerous allegations or relying on general claims does not necessarily make a presidential petition stronger. Instead, allegations should be clearly stated and supported by strong and reliable evidence.
The judge said petitioners must set out their claims with specificity and provide cogent, credible and probative material to support them.
An election can therefore withstand legal scrutiny despite the presence of some breaches if those violations do not undermine constitutional requirements or have a material effect on the result.
However, Justice Ouko said a series of failures could have a different effect when considered as a whole. Where their cumulative impact destroys confidence in the integrity of the election, the combined violations can provide grounds for invalidating the poll.
He said the legal principles surrounding presidential election petitions continue to develop as courts deal with disputes over the exercise of political power.
Justice Ouko said the Supreme Court's wider responsibility is to ensure that the resolution of each dispute strengthens the constitutional order and keeps the settlement of political power within the ballot and the law.