CHAPTER 3 PRE-ELECTION DISPUTES THROUGH THE LENSES OF KENYA’S LAW, POLITICS, AND EXPERIENCES WAFULA WAKOKO* ABSTRACT Resolution of pre-election disputes is among the bridges towards a free and fair election. as it offers an initial avenue for aggrieved parties to seek redress. Free and fair election is understood to include a process devoid of violence and an environment that facilitates the exercise of political rights.1 Kenya’s law bestows the jurisdiction of settling pre-election disputes on the Independent Electoral and Boundaries Commission (IEBC), among other bodies.2 This chapter finds that the Electoral Dispute Resolution (EDR) framework is central to electoral integrity under the Kenyan framework. The discussion in this chapter looks at the laws for resolution of disputes and the experiences drawn from the pre-electoral period of the 2017 general election. The sufficiency of laws and political parties’ internal democracy is examined. This chapter also discusses proposals, where practical, and poses questions that require further discourse. The salient themes include operational setting, Electoral Code of Conduct, nomination rules, party primaries, allocation of special seats by use of party lists, independent candidates, and registration of candidates for elections. As illustrated in Kenya’s post 2007 election, the lack of an effective and trusted EDR system contributes to electoral violence.3 Its importance notwithstanding, use of EDR alone cannot solve the problem of election violence. Conduct of EDR in strict compliance with existing laws, continued capacity building of EMBs and courts, timely review of laws, demilitarisation of elections, and voter education are just but some of the factors that must be given life. * 1 2 3 An Advocate of the High Court of Kenya whose areas of focus include governance and democracy. He holds a Bachelor of Laws (Hons) from the University of Nairobi (UoN), a Post-Graduate Diploma in Law from the Kenya School of Law, and is pursuing a Master of Laws in Law, Governance, and Democracy at the UoN. He has previously worked with and for the Human Rights Watch, Independent Electoral and Boundaries Commission, the United Nations Development Program under the Support to Electoral Processes in Kenya (SEPK) Project, and the Electoral Law & Governance Institute for Africa. He is currently conducting research on Intraparty Democracy in Kenya. Constitution of Kenya Art 81. Constitution of Kenya Art 88(4) (e). At http://kenyalaw.org/kl/fileadmin/CommissionReports/Report-of-the-Independent-Review-Commission-on-the-General-Elections-held-in-Kenya-on-27th-December-2007.pdf (accessed 20 February 2021). 23