On 15th August 2022, the Independent Electoral Boundaries Commission (IEBC) Chairman Wafula Chebukati declared Hon. William Ruto as the President-elect. This declaration was immediately disputed by four IEBC Commissioners and Hon. Ruto’s main challenger, Hon. Raila Odinga. Under Kenya’s Constitution, any disputes arising out of presidential elections can only be resolved by the Supreme Court of Kenya. Legally, aggrieved parties only have 7 days from the date of declaration to petition the Supreme Court.
Consequently, on 22nd August 2022, 9 petitions were filed contesting the declaration of presidential results. These are:
- John Njoroge Kamau v Wafula Chebukati and the Deputy President of Kenya;
- Youth Advocacy Africa v IEBC;
- Khelef Khalifa and George Osewe and 2 Others v IEBC and HE William Ruto;
- David Kariuki Ngari v IEBC and Wafula Chebukati;
- Raila Amolo Odinga and Hon. Martha Karua v IEBC and Wafula Chebukati & 7 Others;
- Moses Kuria v Raila Odinga;
- Okiya Omtatah Okoiti v IEBC;
- Juliah Nyokabi Chege v IEBC; and
- Reuben Kigame Lichete v IEBC
(collectively, the Petitions)
Under the Supreme Court (Presidential Election Petition) Rules, 2017 (the Rules), upon being served, the respondents in each petition have 4 days to file and serve their responses. This 4-day period lapsed on 27th August 2022. The Supreme Court has made all the pleadings and submissions in relation to the Petitions publicly available on the Judiciary’s website. With the Petitions and respective responses filed, where do we go from here? In this alert, we briefly explain the process which the Supreme Court will oversee for the next week and analyse the current state of affairs in relation to continuity of government.
What to Expect in the Coming Days
The proceedings before the Supreme Court commenced with a pre-trial conference on Tuesday 30th August. During the pre-trial conference, the court issued various directions consolidating the petitions and confirming the advocates who will appear for the respective parties and the time allocated to them. Already, the Supreme Court has delivered a ruling on a several preliminary objections and has struck out the petitions by Moses Kuria and Rueben Kigame.
The hearing of the petition is commenced today, Wednesday 31st August, and will run through to Friday 2nd September. At this stage, advocates for each party will highlight their submissions before the Supreme Court. This will be a brief overview of their key arguments because the petition is determined by way of affidavits and written submissions. At the tail end of this process, the Supreme Court would be required to determine the petition by Monday 5th September. The Court is not bound to give the reasons for its decision immediately, it may defer this to a later date provided this deferment does not exceed 21 days. In accordance with Rule 22 of the Rules the Supreme Court may make an order:
a) dismissing some or all of the Petitions;
b) invalidating the declaration made by the IEBC;
c) declaring the election of the President elect to be (i) valid or (ii) invalid;
d) on payment of costs; or
e) orders as it may deem fit and just.
If the Supreme Court nullifies the outcome and orders a fresh presidential election, the IEBC will have a period of 7 days to Gazette the date they propose to hold the fresh election which must be within 60 days of the Supreme Court’s decision. We discussed the timelines applicable in various scenarios in our previous alert.
Summary of the Timelines
Continuity of Government
In our previous alert, we detailed the different timelines that would apply depending on how the general elections turned out. Based on these scenarios, and as the hearing of the Petitions continues, there still exists a likelihood that the incumbent President could very well be in office until 5th December 2022. This brings a crucial question into sharp focus—what can the Office of the President do during this period? In other words, what does this period mean for continuity of government?
As soon as the first ballot was cast on 9 August 2022, the provisions of the Constitution on temporary incumbency of the Presidency kicked in. These provisions cater for the transitional period from the date of the election to the date when the President-elect is sworn in. During this period, the powers of the office of the President, are substantially reduced.
Article 134 of the Constitution provides that, during the transitionary period, the President may not exercise the following powers of the Presidency:
a) the nomination or appointment of the judges of the superior courts;
b) the nomination or appointment of any other public officer whom the Constitution or legislation requires the President to appoint;
c) the nomination or appointment or dismissal of cabinet secretaries, ambassador or diplomatic or consular representative;
d) the power of mercy; and
e) the authority to confer honours.
These limitations do not mean that the incumbent President loses all their powers during the transitionary period. For example, in the unlikely event of an emergency, the incumbent still holds the power to declare a state of emergency.
With the possibility of a repeat election, it is healthy for continuity of government that the Office of the President’s powers are largely unaffected. However, one must consider this against the fact that Parliament (both the National Assembly and Senate) is expected to be fully constituted within a few days as required by the Constitution. The President is mandated to Gazette the date for Parliament’s first sitting within 30 days of the general election, which would be by 8th September. During this sitting, the Members of the National Assembly and Senate will be sworn in and will elect Speakers of the respective Houses. Legislative business for the 13th Parliament will then commence. However, with the incumbent President unable to nominate or appoint public officers and Cabinet Secretaries, some of whom resigned to seek elective office, there will likely be a slowdown in certain government functions in the event the new President does not assume power soon after Parliament. While the National Assembly is mandated to approve individuals for appointment to the Cabinet, they can only do so when the President has formally nominated such individuals to various Ministries. The incumbent President currently cannot do so.
Should you have any questions regarding any information on the update on the state of affairs of the Kenyan Elections 2022, please do not hesitate to contact Karim Anjarwalla.
Contributors: Fenan Estifanos, Mdathir Timamy, Vianney Sebayiga, Abdulmalik Sugow (Trainee Lawyers)