Why Contradictory Application and Interpretation of the Kenyan Constitution’s Rules should not be a limiting factor in evidentiary matters in Election Petitions.



The success of an Election Petition is based on the evidence provided. Evidentiary matters, in this regard, thus form a central part in the litigation process. Over time, many laws have been governing the litigation process in Electoral Petitions in Kenya. While some of the rules are old, there was an emergence of new rules upon the promulgation of the Kenyan Constitution, 2010. Some of these rules have been subject to contradictory application and interpretation concerns. These concerns question whether the practice of evidence law, in and the approach to evidentiary matters, really helps in giving verdicts that prove free and fair elections or otherwise. We might want to hang question marks on the development and interpretation of such laws by courts over time.

Some of the emerging issues call for reforms in the petition cases. In the 2013 presidential Election Petition, for example, the case was dismissed on the basis of, among other arguments, the failure to file additional affidavits before the pre-trial conference, it might be roughly translated that the court rejected the addition of further affidavits more out of pressures to limit the amount of material available for consideration due to time constraints in the Petition than out of sound legal principles on relevance and admissibility of evidence. The verdict given, therefore, ended up being unjust.

I think we need a few reforms in our Court system and Rules relating to Election Petitions. The admissibility of further evidence by the Petitioners should be looked into, also, time frames for the hearing of Election Petition proceedings should be extended and lastly, Courts should stop leaning too much on technical issues but instead major on admitting as much evidence as possible because evidentiary matters form a more central part of the litigation process. Election petition cases should be lost on basis of insufficient evidence and not on basis of pre-determined verdicts or lack of sufficient time for petition hearings.




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