Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence This definition by the courts restricts scrutiny to only matters brought before courts. In the electoral process, however, scrutiny is broader. It transcends the entire electoral process. In most cases, electoral disputes raise issues from all stages of the electoral process: the integrity of the voters register; commission of election offences during election campaigns; the conduct of the ballot; and the counting and tallying of votes before the declaration of election results. These are among the areas that generate protracted issues in election petitions.23 Viewed in that context, scrutiny is “a scrupulous audit,”24 sometimes referred to as an examination25 or inspection,26 carried out in Kenya, and in many other jurisdictions,27 at several stages in the entire electoral landscape. Its primary objective is twofold: determination of the validity of election results as well as the integrity of the electoral process and a demonstration of the transparent nature of electoral dispute adjudication and fair determination of electoral disputes.28 If scrutiny is well facilitated and properly carried out at all stages of the electoral process, disputes such as those relating to the integrity of the voters’ register and nominations of candidates will be resolved before elections and thus substantially minimize the issues raised in election petitions, thus enabling the judiciary to expeditiously dispose of election petitions. This Chapter critically examines the type of scrutiny carried out at every stage of the electoral landscape and how that weaves into electoral dispute adjudication. The primary objective of this broader view of scrutiny is to identify problematic areas that require closer attention for a seamless, expeditious, competent and fair resolution of electoral disputes and ultimate restoration of public confidence in the judiciary. 23 The integrity of the voters register and the tallying and collation of votes were among the issues which were raised in the Presidential petition of Raila Odinga & Others v. The Independent Electoral and Boundaries Commission & Others, [2013] eKLR. (hereinafter referred to as Raila Odinga case). In Moses Masika Wetangula v. Musikari Nazi Kombo & 2 Others, [2015] eKLR, bribery in the campaign period was the major issue. 24 J Harrington and A Manji (2015) ‘Restoring Leviathan? The Kenya Supreme Court, Constitutional transformation, and presidential election of 2013,’ (2015) Journal of Eastern African Studies, 9:2, 175-192, DOI: 10.1080/17531055.2015.1029296. 25 The Elections Act, No. 24 of 2011, marginal note to s.101. 26 The Elections Act, No. 24 of 2011, s. 6(1). 27 Countries such as the USA, Canada, Australia, India, and South Africa carry out scrutiny at various stages of their respective electoral processes. 28 With some election petitions taking as long as five years and more to resolve, as the Supreme Court held in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR [par.62], the courts have, in the past, justifiably been blamed for tardiness. One of the alleged causes of the 2007/2008 post-election violence was said to be the Kenyan Judiciary’s biased, indolent and incompetent handling of election petitions, particularly the Presidential petitions. That informed the strict timeframe set in the Constitution of Kenya, 2010 and the Elections Act, 2011 for the resolution of election petitions. Scrutiny to demonstrate the courts’ transparent and competent determination of electoral disputes is crucial. 246