On August 8, Kenya holds its general election to vote for the president along with senators, county governors and members of the national and county assemblies. While the 2007 Kenya elections saw much violence and unrest, the 2013 elections were relatively peaceful. One of the elements credited for this was the judiciary’s management of election petitions through effective electoral dispute resolution (EDR) mechanisms.
As part of its work with the Kenyan judiciary on electoral disputes, IDLO commissioned an independent assessment of the judiciary in 2013. One of the key recommendations emerging from the assessment was to make the Judiciary Working Committee on Elections Preparedness (JWCEP), a temporary structure, into a permanent committee. IDLO was subsequently requested to continue to extend its support to the new committee, and the Judicial Committee on Elections (JCE) was set up in 2015.
This work with the judiciary responds to the unique nature of elections and electoral disputes. IDLO Kenya Country Director, Mr. Okero Otieno, comments, “Elections have [their] own rules, own context, own players. […] The challenges are trying to adapt to and work within that context.”
Elections have [their] own rules, own context, own players. […] The challenges are trying to adapt to and work within that context.
This year, IDLO launched its report, Avoiding Violence and Enhancing Legitimacy: Judicial Preparedness for Handling Electoral Disputes in Kenya and Beyond, which highlights the need for a strong judicial electoral dispute resolution mechanism and draws from IDLO’s work supporting the judiciary in Kenya around the 2013 elections. The judiciary has implemented key recommendations informed by IDLO’s report in view of the 2017 elections through the permanent JCE.
One of the main lessons from IDLO’s report focuses on the importance of local ownership of initiatives and reforms to the judiciary. Ownership of reforms is important not only to gather necessary political will, but is critical to increase the relevancy and quality of programming, as well as the commitment from judges and judicial officers to implement the reforms proposed.
An additional measure implemented since the 2013 elections was the development of reference tools to ensure that judges can effectively and efficiently manage the EDR process.
On August 3, IDLO supported the launch of the Judiciary Bench Book on Electoral Disputes Resolution, a reference guide for judges and magistrates working on EDR. The one-year process of developing the book was fully led by the judiciary through a technical committee. The technical committee comprises 50 percent of its members from the judiciary, with the remaining members hailing from academia, civil society and the law society of Kenya.
IDLO Kenya Program Manager, Mr. Felix Kyalo, commented that the composition of the group was to “ensure that the Bench Book produced [for] the judges and magistrates fully responds to the needs, the challenges that were faced before, and it’s something that the judges can take and use with confidence.”
Another key recommendation from IDLO’s report pertains to skills-building for judges and judicial support staff. Unlike in 2013, the JCE with IDLO’s support conducted a training needs assessment to identify specific areas of improvement leading up to the 2017 elections. The results of the assessment were submitted to and adopted by the JCE, and IDLO supported a training program, including a Training of Trainers (ToT) component, to respond to the challenges and recommendations made in the report.
“This has been one of the priorities that the JCE has really worked on and delivered fully.” remarks Mr. Kyalo.
The ToTs respond to skills-building, but they also contribute to ownership and sustainability by creating a pool of peer trainers available to the judiciary at any given time. To date, 65 ToTs involving the Supreme Court, Court of Appeals, High Court, magistrates and support staff, have been delivered. Similar training curricula have been embedded in Kenya’s Judicial Training Institute, so that judges and judicial officers will have access to continuous and updated skills-building workshops.
By the end of September, all key actors working on EDR will have been trained, including all members of the Political Parties Disputes Tribunal, a body that deals with pre-elections disputes.
“When you talk about whether elections are free and fair, you need to look at events on the pre-election level,” says Mr. Kyalo. These efforts contribute to the sustainability of reforms by covering pre- and post- election periods.
Another critical measure implemented by the JCE focuses on public outreach. IDLO’s report found that an effective electoral dispute preparation program needs significant public outreach to ensure the public understands the system, feels empowered to use it, and trusts it will deliver swift and independent justice.
Drawing from these lessons throughout the past year, the JCE has increased its engagement with the public and civil society by hosting several meetings to update the public on judicial transformation initiatives, what remains to be done and the timeline for reform.
Considering IDLO’s findings, the Committee has also made use of the media, including social media, to increase its reach to key populations like youth, and enhance the transparency of its processes.
Those close to the judiciary’s reforms see the positive effect of this work. Mr. Kyalo notes that the level of public engagement during the pre-election period indicates that “people really feel that the judiciary is on their side, that they can be able to take confidence in what the judiciary is doing, and that there is justice when it comes to issues of elections from the courts.”
People really feel that the judiciary is on their side, that they can be able to take confidence in what the judiciary is doing, and that there is justice when it comes to issues of elections from the courts.
Watch Part 1, Part 2, Part 3, Part 4, Part 5 and Part 6 of IDLO’s discussion with its Kenya team about the judiciary’s work on electoral dispute preparation and resolution in the lead up to the elections, and IDLO’s support in the country to-date.
Photo credit: Kenya General Elections 2013 - Flickr- The Commonwealth - March2013
4 May, 2017
The Lessons Learned Brief, Avoiding Violence and Enhancing Legitimacy: Judicial Preparedness for Handling Electoral Disputes in Kenya and Beyond presents lessons on electoral dispute preparation (EDP) and electoral dispute resolution (EDR) programming, drawing from IDLO’s pioneering support to the Kenyan judiciary in the 2013 general election, and the international literature on EDR systems. Executive Summary also available for download below.
As five African countries, including Kenya, gear up for elections later this year, IDLO’s Director-General, Irene Khan, visited Nairobi to support ongoing work in the country and met with officials to discuss electoral justice, good governance and gender equality.
Press release: (Nairobi, Kenya) May 4, 2017 – As five countries in Africa, including Kenya, gear up for general elections later this year, a new report published today by the International Development Law Organization (IDLO) highlights the need for a strong judicial electoral dispute resolution mechanism.
Resolving Electoral Disputes in Kenya
In 2010, the people of Kenya overwhelmingly voted in favor of a new Constitution, following a protracted struggle for constitutional reform spanning over two decades. Under the new Constitution, the elections of 2013 were the first in Kenya’s multiparty history with Electoral Dispute Resolution (EDR) processes in place. With these mechanisms, disputes can be resolved legally, peacefully and speedily – as opposed to resulting in violence or being allowed to drag through the courts.