Standard of proof in adjudicating election petitions : a case for a rights-centric approach in Kenya

Abstract

In Africa, different countries have adopted transformative constitutions which put much weight on the attainment of electoral justice. In Kenya, the 2010 Constitution is unusually preoccupied with the concept of electoral justice. However, the electoral jurisprudence emanating from the Kenyan Courts from 2013 to 2022 demonstrates that petitioners have very weak prospects of success due to the courts’ approach to election dispute resolution. In particular, the intermediate test standard of proof saddles the petitioner with an onerous standard of proof and fails to put the right to vote, access to justice and the sovereignty of the people at the centre of the dispute. Further, the intermediate test is an example of the judiciary’s timidity to upset elections because these petitions are purely constitutional and there is nothing unique about them to justify the adoption of a standard of proof that is unknown in law. Additionally, the approach ignores an explicit constitutional requirement under Article 20(3)(b) requiring courts to adopt the interpretation that most favours the enforcement of a right or fundamental freedom. This study calls for the adoption of a rights-centric approach that puts the rights and the will of the people at the centre and avoids relegating the rights to the periphery as the courts have been doing. This approach cannot countenance the higher standard of proof that has resulted in a chilling effect on the capacity of normal citizens to attain electoral justice.