CHAPTER FIVE Muriuki Muriungi in Chapter Five assesses emerging jurisprudence from Kenyan courts and other EDR forums on the resolution of pre-election disputes. The chapter analyses the various forms of pre-election disputes that form the subject of adjudication in EDR bodies and which have a bearing on the integrity and outcome of elections. These include, among others, political party nomination disputes; eligibility of voters and candidates to participate in elections; and instances of electoral malpractice, including voter bribery and violence before elections or during nominations. This is in addition to whether a candidate has met the qualification criteria set in law to contest for a particular elected office. The review of emerging jurisprudence is intended to help in documenting and critiquing existing knowledge and underlining the importance of pre-election disputes. The chapter demonstrates that this subject has received scant scholarly attention relative to postelection disputes, and this assessment is also consistent with the emerging consensus that an election is not an event but a process. CHAPTER SIX Tarisai Mutangi in Chapter Six uses emerging jurisprudence to discuss the approach of the courts to the subject of the standard of proof in election disputes. The chapter is premised on the high failure rate prevalent across the continent. The author argues that petitioners find it almost impossible to reverse an election result based on allegations of electoral malpractices, fraud or any other grounds allowed by the law of each country. One of the causes of this is that there is no consensus among sub-Saharan countries whether election proceedings are civil or criminal. This has a bearing on the standard of proof required. In addition, the Chapter shows that there is consensus that the petitioner bears the onus of proving that the election was not conducted in accordance with the law or that there were irregularities that had the effect of affecting the result in a “substantial manner,” and further that onus shifts to the respondent to rebut the petitioner’s prima facie case. In addition, there is no consensus on the standard of proof, with some jurisdictions using the balance of probabilities, others proof beyond reasonable doubt, while a few use the “intermediate standard.” Other jurisdictions have rejected this approach in preference for a human rights-based approach that makes the effective exercise of the right to vote the primary consideration. The author 6 concludes that there is no basis for elevating the standard of proof in election petition proceedings to a level higher than any other proceedings. Where civil allegations are made, the petition should prove to the civil standard, but where criminal allegations are made, to a higher standard, if appropriate. CHAPTER SEVEN Godfrey Mupanga in Chapter Seven, just like Tarisai, discusses the subject of the standard of proof. He illustrates that the superior courts in Zimbabwe have often ruled that the standard required to overturn an election result is the more onerous proof beyond reasonable doubt as opposed to proof on a balance of probabilities. In this, the author uses the recent presidential election petition in Nelson Chamisa v Emmerson Dambudzo Mnangagwa & Others, to show how the Constitutional Court avoided engaging with proof on a balance of probabilities and proof beyond a reasonable doubt. Instead, complicating the subject, the Constitutional Court opted to simply state that the petitioner must prove his case to the satisfaction of the court. The Chapter assesses the reasoning of the courts in preferring the more onerous standard in cases that are purely civil in nature. It is argued that because an election petition is a civil case, the standard of proof should be “proof on a balance of probabilities” or some other way of putting it that keeps the standard at that level as the High Court of Malawi has recently settled the matter. It does not matter that the issues in contention are serious or that they constitute criminal offences attracting lengthy periods of imprisonment. The author recommends that in Zimbabwe, perhaps, this matter requires legislative intervention. CHAPTER EIGHT Marystella Auma Simiyu in Chapter Eight examines the preparedness of the courts in handling electionrelated digital threats, drawing from the experiences of the 2013 and 2017 Kenyan elections. She applauds the 2017 decision of the Supreme Court for upholding the constitutional standard for a genuine, free, and fair election. The Chapter further discusses new and emerging digital threats to electoral systems and what Kenyan courts and relevant stakeholders need to do to ensure that they are well-equipped to effectively provide redress and jurisprudential guidance. The author particularly cautions against the growing effect of disinformation on the voting process, an aspect that is untested in Kenyan courts.