Why The High Court Refused To Stop Tallying Of Presidential Votes

[MaxShimba]

The African Centre for Open Governance (AFRICOG) v Ahmed Issack Hassan & Another
High Court of Kenya at Nairobi

Constitutional and Human Rights Division

Petition No. 152 of 2013

I. Lenaola, D.S. Majanja, W.Korir JJ.

March 8, 2013

The petitioner, a NGO working in the area of democracy, transparency, and open governance in Kenya filed a petition challenging the manual tallying of the presidential ballots without verification with the actual constituency based results in the relevant submitted forms. The petitioner inter-alia sought orders for the High Court to stop the manual tallying of the presidential ballots and in the event that the respondents will have announced the presidential results by the hearing of the application, an order restraining the respondents from gazetting the results until hearing and determination of the petition herein.

The jurisdiction of the High Court is provided for under Article 165(3),(5) of the Constitution of Kenya, 2010, and further limited to various instances including matters reserved for the exclusive jurisdiction of the Supreme Court under the constitution. The constitution had also vested exclusive original jurisdiction to the Supreme Court to hear and determine disputes relating to elections to the office of the President arising under Article 140 which provided for the manner in which questions as to the validity of presidential elections shall be handled.

Issue:
Whether the High Court had jurisdiction to stop the manual tallying of the presidential ballots.

Held:
1. Jurisdiction was everything and without it, the court had no power to make one step. Where a court had no jurisdiction there would have been no basis for a continuation of proceedings pending other evidence and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it was without jurisdiction.

2. The import of Article 165(3) and Article 140 of the constitution was that where jurisdiction was exclusively donated by the constitution to the Supreme Court, the High Court could not have invoked its jurisdiction under Article 165(3)(d)(ii) to enquire whether anything done under the authority of the constitution was inconsistent with or in contravention of the Constitution.

3. According to the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion Application No. 2 of 2012 (2012) eKLR, there was no reason for the court to have presumed that the framers of the constitution had intended that the Supreme Court should have exercised original jurisdiction only in respect of a specific element, namely, disputes arising after the election while excluding those disputes which might have arisen during the conduct of the election. The High Court has therefore no jurisdiction over any matter in which the constitution had reserved for the exclusive jurisdiction of the Supreme Court.

4. The petition contained matters that involved the process leading to the declaration of a successful presidential candidate. The presidential election was not a single event but a process that flowed from nominations to election petitions subsequent to the declaration of presidential election results. The High Court could therefore not have appropriated jurisdiction to entertain the petition however urgent or important it may have been to the parties or the public.

5. The issues raised in the petition however, were not idle and should therefore be pursued in the right forum.

Petition dismissed.

Why The High Court Refused To Stop Tallying Of Presidential Votes | The Star