Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence
electoral system. The Constitution of Kenya, 2010(the Constitution) requires,
in imperative terms, that whatever methods are employed, the conduct
of elections shall be “simple, accurate, verifiable, secure, accountable and
transparent.”3
Elections the world over, however, are competitive “features.”4 Heads of State
in many parts of the world, and especially in Africa, wield a lot of power.5 “The
influence that comes with the office makes it very attractive.”6 That influence
cascades down through all elective positions. Besides the candidates, the
electorate themselves, hoping for an improved standard of living, get equally
agitated.7 Candidates and political parties often do anything to be elected.
Incumbents who are eligible for re-election marshal state power and all means
at their disposal to get re-elected.8 All these factors make elections at every
level extremely “high-pressure events.”9
If they are mismanaged or candidates do not respect and adhere to the rules
of the game; if the average citizen, political parties and candidates do not
perceive them as free and fair, elections can stoke and foment conflict, which
can lead to instability of a country with attendant economic breakdown.10
With such eventualities, the proper management of elections is of crucial
importance to both the stability and prosperity of nations, especially on the
African continent. To enjoy public confidence as credible and legitimate, the
entire electoral process from the registration of voters and the integrity of the
voters register; nomination of candidates; campaigns; the conduct of elections;
and the counting and tallying of votes, must be transparent, verifiable and
accountable and be perceived to be so. The objectivity and impartiality of the
electoral dispute resolution mechanism11 (EDR) inspires public confidence
3 The Constitution of Kenya, 2010, Article 86(a).
4 Independent Review Commission Report (IREC) The 2007 General Elections in Kenya ch III, (2008), 32.
5 E O Abuya, ‘Can African States Conduct Free and Fair Elections?’ (2010) 8 Northwestern Journal of International
Human Rights, 123.
6 E O Abuya, ‘Can African States Conduct Free and Fair Elections?’ (2010) 8 Northwestern Journal of International
Human Rights, 123.
7 E O Abuya, ‘Consequences of a flawed presidential election’ (2009) Legal Studies, 29, 127-158.
8 E O Abuya, ‘Consequences of a flawed presidential election’ (2009) Legal Studies, 29, 127-158.
9 Independent Review Commission Report (IREC) The 2007 General Elections in Kenya ch III, (2008), 32.
10 The flawed presidential elections in Kenya in December 2007 led to post-election skirmishes that left about
1,000 people dead, about 700,000 others displaced and drove the country to the brink of precipice not to mention
the gargantuan economic crisis that was thereby wrought. A similar situation was witnessed in Cote d’Ivoire
following the bungled presidential elections in November 2010. See Communiqué of 252 Meeting of the Peace and
Security Council of African Union held on 9 December 2010.
11 V Autheman, Note 1.
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