Supreme Court Justice William Ouko has noted that those who will be having a chance to challenge the results of a presidential election must prove more than the existence of legal violations or irregularities in the voting process for the declared results to be nullified.
Speaking on Tuesday at Catholic University of Eastern Africa, Justice Ouko said those challenging the results must demonstrate that the alleged violations affected the outcome or undermined the integrity of the election to such a significant extent that the court could not, in any way, uphold the results.
“It is the responsibility of the petitioner to prove that the election was so badly conducted and was marred by irregularities and violations of the law to such an extent that it does not matter who was declared the winner. In other words, the election was affected by so many irregularities that, taken together, they substantially undermined the integrity of the election,” he said.
Justice Ouko recalled that, before the 2010 Constitution, challenges to presidential election results faced legal and procedural obstacles.
However, Ouko noted that the 2010 Constitution responded to these challenges by giving the Supreme Court exclusive jurisdiction to hear petitions challenging presidential elections.
Justice Ouko said this was intended to ensure that disputes concerning the country’s highest office receive an authoritative and final determination.
Under the law, a petition challenging presidential election results must be filed within seven days of the results being declared.
The court must issue its decision within 14 days, while a fresh election must be held within 60 days if the election is annulled.
“However, doing things quickly should not be confused with haste,” Justice Ouko.
He said the legal burden of proving the allegations remains with the petitioner, although the evidentiary burden may shift to the other side when the petitioner presents sufficient evidence requiring a response.