Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence 3.2 Scrutiny of Nomination Papers The next stage of scrutiny in the electoral process is at the nomination of candidates seeking to vie for any election. The objective of this inspection is to confirm the prospective candidates’ compliance with the criteria set out in the electoral laws. In Kenya, election officials carry out this type of scrutiny. The Elections Act sets out the criteria for eligibility to vie for any elective position and requires the IEBC to vet the names of applicants forwarded to it by political parties or independent candidates who present themselves for nomination.48 Some other jurisdictions, however, go a step further to allow inspection of the prospective candidates’ nomination papers by their rivals and the public. In India for instance, after the nomination of candidates is completed, Section 36(1) of the Representation of People Act, 1951 authorizes inspection of candidates’ nomination papers by their rivals with a right to challenge their validity.49 In South Africa, the inspection is open to the public at large,50 while in Uganda it is limited to registered voters only.51 Kenya, like many other African states, is a patriarchal society.52 As such, women, youth and persons with disabilities53 do not have equal chances of success to elective positions and fare poorly even in appointive positions. To achieve some form of balance, the Constitution has provided for affirmative action54 for appointive positions and election of women, the youth, persons with disabilities, to Parliament and the County Assemblies on the basis of proportional representation by use of party lists55 (nominations). In the aftermath of the 2013 general elections, many petitions were filed in court challenging the composition of party lists. Such disputes can greatly be minimized if Kenya were to adopt the open form of scrutiny of candidates’ nomination papers and party lists found in the said jurisdictions. 48 See Elections Act, ss. 22 to 37and Election Regulations, Parts III to Part X. 49 A B Kafaltiya, Democracy and Election Laws, (2003) 140. 50 The South African Elections Act No. 73 of 1998, s. 29. 51 The Ugandan Parliamentary Elections Act, 2005, s. 15. 52 In a literal sense, patriarchy refers to the rule of the father in a male dominated society. See S Walby, Theorizing Patriarchy, 1990. 53 In Kenya, the Constitution lists the youth, without specifying the age range, women and persons with disabilities as vulnerable groups in whose favor there should be affirmative action. 54 See Constitution of Kenya, 2010, Article 27(6). 55 See Constitution of Kenya, 2010, Articles 81; 90; 97(1) (c), 98(1) (b), (c) & (d) and 177(1) (b), (c) & (d). 250