International Foundation for Electoral Systems Independent Electoral Commission & 2 Others, the Supreme Court of Kenya held that in electoral disputes, “the standard of proof remains higher than the balance of probabilities but lower than beyond reasonable doubt and where allegations of criminal or quasi criminal nature are made, it is proof beyond reasonable doubt.”89 Since this case did not turn on allegation of fraud or other criminal misconduct, the court applied the intermediate standard of clear and convincing evidence. In its judgment on the 2001 Zambian presidential election petition against President Levy Mwanawasa, the Supreme Court of Zambia referred to its previous case of Lewanika v. Chiluba, which affirmed that “it cannot be seriously disputed that Parliamentary Election Petitions have generally long required to be proved to a standard higher than on a mere balance of probability.”90 Similarly, in a presidential election petition where the ruling of the court can affect the governance of the nation and the deployment of constitutional power and authority, “a fairly high degree of convincing clarity is required.”91 The gravity and public importance of certain issues involved in a complaint can require that the standard of proof be raised.92 The choice of what standard to apply to each type of electoral complaint might be made by the EMB, set by legislation, or even mandated in a national Constitution. Regardless, the exact standard to be applied in any particular case should be established in advance of the hearing rather than chosen by the arbiter on an ad hoc basis.93 Given the differences between legal systems, as well as the different kinds of issues raised by different cases, a diversity of approaches to the standard of evidence required in annulments around the world is to be expected.94 However, there remains a strong argument that, given the serious consequences of annulment, a higher standard of proof should be required to overturn the results of an election. A number of commentators have argued for “clear and convincing” as the appropriate standard in challenges to election results, and this standard also seems to have become the default standard of evidence in international civil law.95 Timeline Even more than other election-related cases, challenges to election results need to be resolved quickly to preserve the integrity of the election outcome and to avoid prolonged uncertainty around governance. Failure to establish the results of an election can delay the formation of legislatures and “clear, convincing, and unambiguous evidence”); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ. 14 (June 27) (applying an unnamed standard between reasonable doubt and preponderance of the evIdence), http://www.icj-cij.org/docket/files/70/6503.pdf. 89 Raila Amolo Odinga & Another v. Independent Electoral Commission & 2 Others (2017), para 152. 90 Lewanika v. Chiluba, (1998) ZLR 86 [SC] (Zam.), http://www.saflii.org/zm/cases/ZMSC/1998/11.pdf; see also Mazoka v. Mwanawasa, (2002) S.C.Z./EP/01/02/03/2002 (Zam.). 91 Mazoka v. Mwanawasa, (2002) S.C.Z./EP/01/02/03/2002 (Zam.). 92 Bater v. Bater, [1951] P. 35, 37 (C.A.) (U.K.). 93 See supra Part 2 (describing the international standard of a clearly defined regimen of electoral standards and procedures). 94 See discussion in GUARDE, 66. 95 Louis Henkin, How Nations Behave: Law and Foreign Policy 142 (2d ed. 1979); Dinah Shelton, Judicial Review of State Action by International Courts, 12 Fordham Int’l L.J. 361 (1989); Christopher Greenwood, International Law and the United States’ Air Operation Against Libya, 89 W. Va. L. Rev. 933 (1987). 22