International Foundation for Electoral Systems complaints are heard and addressed. In Namat Alieyev v. Azerbaijan, the ECtHR charged domestic courts with the responsibility of taking reasonable measures to investigate alleged irregularities when the evidence provided by an applicant is insufficient to decide the case but nonetheless strong enough to warrant additional inquiry.67 In Kenya, for post-election petitions the burden is on the petitioner to prove his or her case. However, depending on the effectiveness with which s/he is able to do so, the evidential burden can be lessened to ensure a legitimate grievance is properly investigated. In some cases, if a legitimate grievance is demonstrated, the burden can shift to the EMB. This approach helps to ensure any inequalities in terms of access to evidence can be mitigated. The challenge to the results 2017 Kenyan presidential election is an instructive example. In that case, the court held that: “Once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behooves the respondent to adduce evidence to prove compliance with the law.”68 This shift in the burden was critically important to the success of the challenge, as the court was ultimately “satisfied that the petitioners have discharged the legal burden of proof as to squarely shift it to the [EMB and president-elect]. We are also of the firm view that having so shifted, the burden has not in turn been discharged by the [EMB and president-elect] as to raise substantial doubt with regard to the petitioners’ case.”69 These different approaches to the burden of proof reflect different balances between the presumption of validity and the need to get at the truth. A stronger presumption of validity may be most suitable in cases where the rules of evidentiary discovery give challengers the tools they need to gather the evidence required to make their cases. Where systems of evidentiary discovery are weak, or where courts are unable to compel defendants or third parties to comply with demands for information, a more flexible standard may be appropriate. Because the gathering of evidence in annulment cases, and election cases generally, can be extremely difficult, the EMB’s role can be critically important. In some cases, the EMB will be the only party in a position to investigate irregularities. In other cases, the EMB may be best able to determine the impact 67 Namat Aliyev, supra 65, paras 88-89. “[i]n terms of initial evidence necessary for examination of this specific issue, the courts had to do nothing more than request the electoral commissions to submit those protocols to them for an independent examination. If such examination indeed revealed inconsistencies, a more thorough assessment of their impact on the election results would be necessary.” 68 Raila Amolo Odinga & Another v. Independent Electoral Commission & 2 Others (2017). 69 Raila Amolo Odinga & Another v. Independent Electoral Commission & 2 Others (2017). 18